Virginia Injury Attorney Blog

The May 2013 issue of Trial reported a half-dozen Verdicts & Settlements. Id. at 8-12. One is a medical malpractice lawsuit for negligent laparoscopy that settled for roughly $1,000,000.00 in California. Id. at 8-9.

Another is a special case of product liability involving after-market modifications of a motor vehicle, in which a RV owner, its customizer, an alarm system installer, and an inspector contributed more than $2,000,000.00 in a Michigan settlement with a permanently disabled occupant of the vehicle. Id. at 8. Mr. Waterman handles medical malpractice, product liability, vehicle accident, and other cases of wrongful death and personal injury.

Trial is the monthly magazine of the American Association for Justice (“AAJ”). Its May 2013 is its annual issue on “Medical Malpractice”.

Five articles are featured: “Dangers of Electronic Medical Systems,” id. at 14-19; “The Pros and Cons of Practice Guidelines,” id. at 20-25; “EMERGENCY ROOM MALPRACTICE,” id. at 26-32; “ALTERNATIVE APPROACHES IN RESPONDING TO MEDICAL ERRORS,” id. at 34-41; and “DAMAGES CAPS AND INVIOLATE RIGHTS”. Id. at 42-49. Another Medical Malpractice insert is “ELEMENTS OF EARLY OFFER PROGRAMS”. Id. at 38-39.

Mr. Waterman has been an AAJ member for decades. His practice includes patient fall, nursing home, and other medical malpractice cases involving wrongful death and permanent catastrophic injury.

Eason v. Sentara Hospitals [and] Sentara Careplex Hospital, No. 12000470 is an alleged wrongful death or survival case pending in Circuit Court for the City of Hampton, Virginia. On January 19, 2013, Plaintiff obtained a written expert opinion that both Sentara Defendants deviated from the nursing standard of care.

On April 23, 2013, Eason v. Sentara Defendants, Sentara Hospitals’ and Sentara Careplex Hospital, served Motion to Reduce Ad Damnum, trying to reduce Plaintiff’s patient fall suit from $10,350,000.00 to only $2,000,000.00 summarily. On May 2, 2013, Plaintiff served her Memorandum in Opposition, arguing Sentara Defendants’ dilatory Motion is without merit - indeed, conflicts with a plain reading of the applicable statute, plus two Virginia Supreme Court opinions.

Va. Code Ann. §8.01-581.1 controls and simply provides expressly: “In any verdict returned against a healthcare provider in an action for medical malpractice…, the total amount recoverable…shall not exceed the cap.” (emphasis added) Since §8.01-581.1 is in derogation of Virginia common law, hornbook law holds that it must be construed strictly, i.e., narrowly against its beneficiary Defendants, to apply only to “verdict” as stated.

§8.01-581.1 explicitly limits only the “amount recoverable,” not the amount the jury can award. §8.01-581.1 does not “cap” any ad damnum: if the General Assembly wanted to achieve that result in medical malpractice cases such as Eason v. Sentara, then it easily could and should have legislated so expressly.

Va. Code Ann. §8.01-379.1 guarantees Plaintiff the right to plead and argue above the cap, including in wrongful death suits like Eason v. Sentara. §8.01-581.1 does not purport to abrogate §8.01-379.1, and must be harmonized with it.

Circuit Courts have denied motions like that of Sentara Defendants in Eason v. Sentara. See, e.g., Exhibit 1, Marshall v. Moniz, No. CL08-2018, Order at 2 (York Mar. 28, 2011); Wright v. Eli Lilly & Co., 65 Va. Cir. 484, 499-504 (Portsmouth Sep. 21, 2004)(citing Morris v. Commonwealth, 46 Va. Cir 216, 223 (Albemarle Jul. 17, 1998)(Peatross, J.)); Benson v. Lowe, 44 Va. Cir. 85, 86-87 (Norfolk Nov. 25, 1997)(Jacobson, J.); Bennett v. Riverside, 43 Va. Cir. 13, 14 (Newport News Mar. 17, 1997)(Frank, J.); Dell v. French, 38 Va. Cir. 91, 100 (Fairfax Aug 2, 1995)(Roush, J.); Johnson v. Commonwealth, 51 Va. Cir. 311, 318 (Stafford Feb. 9, 2000)(Haley, J.). Correspondingly, Peninsula Circuit Courts have reduced jury verdicts in excess of the cap, including notably in 2 other patient fall trials of Mr. Waterman. See, e.g., Denton v. Chu, No. CL12-94 (Hampton Feb. 2013); Final Judgment Order, Burrell v. Riverside Hosp., Inc., No. CL1101633F-15 (Newport News Jan. 29, 2013)(patient fall); and Amended Judgment, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Nov. 30, 2005)(patient fall).

“Hence the appropriate procedure is to submit the case to the jury without informing the jury of the limit on recovery. Should the jury return a verdict in excess of the Medical Malpractice Cap, the trial judge will reduce the award to the amount of the Medical Malpractice Cap.” Wright, supra, 65 Va. Cir. at 503 (quoting Dell).

More fundamentally – dispositively in Eason v. Sentara - the Virginia Supreme Court opinion upholding the constitutionality of the medical malpractice cap in 1989 emphasizes that verdict, not ad damnum, should be reduced:

The limitation on medical malpractice recoveries contained in Code
8.01-581.15 does nothing more than establish the outer limits of a remedy
provided by the General Assembly. A remedy is a matter of law, not a matter
of fact. A trial court applies the remedy’s limitation only after the jury has
fulfilled its fact-finding function.

Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96 (1989)(italics in original)(underlining added) (citations omitted). Moreover, this language of the Virginia Supreme Court in Etheridge was reiterated by it a decade later in Supinger v. Stakes, 255 Va. 198, 205 (1998).

Defendants nonetheless try to cap Plaintiff’s ad damnum in Eason v. Sentara at $2,000,000.00 artificially, toward inappropriately trying to make that the jury’s chopping block. Doubtless Sentara Defendants are sensitive to this year’s record $25,000,000.00+ medical malpractice jury verdict in Denton, supra, in Hampton and to undersigned counsel’s $3,500,000.00 patient fall verdict in Burrell, supra, in Newport News last year; yet those very cases evince verdict, not ad damnum, is to be reduced.

With the ad damnum reduced to only $2,000,000.00, Plaintiff in the Eason v. Sentara wrongful death/survival case will not be able to argue adequate monetary value to her substantial general damages claim for jury consideration, which she avers is an abridgment of her Constitutional right to jury trial and other undue prejudice. Sentara Defendants’ Motion is not well-grounded in fact or in law.

Unbeknownst to patients and the general public, but well-known to Sentara Defendants and its nurses for decades, patient falls are a leading cause of injury in hospitals. Putting up all four bedrails of a patient - as in Eason v. Sentara - is a disfavored patient restraint known to cause and/or aggravate personal injury, particularly when not used in conjunction with a sitter, posey vest or wrist restraints.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

Some medical malpractice defense lawyers have resorted to questioning patients’ experts in deposition whether their litigation testimony supposedly violates membership standards of their professional societies. Query: if the subsequent professional discipline of the patient’s expert by the society can result in a lawsuit verdict against the society, in Virginia can such a damages award also be against an instigating defense lawyer, law firm, and defendant client?

In a 45-page opinion entered on March 28, 2013, a Federal Court upheld a $196,000.00 jury damages verdict in favor of a Plaintiff’s medical malpractice expert against Defendants, American Academy of Orthopaedic Surgeons and American Association of Orthopaedic Surgeons (collectively “AAOS”), for engaging in “tortious conduct by portraying [plaintiff’s expert] in a false light”. Graboff v. The Colleran Firm, et al., No. 10-1710, *1 (E.D.Pa. Mar. 28, 2013). Denying AAOS’ Post-Trial Motion for Judgment as a Matter of Law, the Judge observed: “The evidence shows that the intrusion of the AAOS into the marketplace of expert orthopaedic surgeons is substantial and jeopardized Dr. Graboff’s source of income as an expert.” Id. at *45.

Virginia’s tort of civil conspiracy at common law potentially provides a cause of action against medical malpractice case participants who foster subsequent unfounded discipline of Plaintiff’s expert by his professional society. By separate Blog, Mr. Waterman will provide civil conspiracy authority.

On April 18, 2013, the Virginia Supreme Court issued The Doctors Company v. Women’s Healthcare Associates, Inc., No. 120702. That 7-2 decision found the medical malpractice insurer owed coverage for a breach of contract claim arising out of the healthcare provider’s failure to participate in the Virginia Birth-Related Neurological Injury Compensation Act, Va. Code Ann. 38.2-5000, et seq., as represented.

On de novo review, The Doctors Company held that the parents’ breach of contract claim was covered under the medical malpractice policy as “professional services”. It also held that the alleged breach of contract did not arise out of a statutory violation, an exception to coverage.

During April 5-6, 2013, Mr. Waterman attended “Reptile in Nursing Home Cases” at Disney World in Orlando, Florida. It was a 2-day legal seminar.

This special medical malpractice program featured Don Keenan and other plaintiff lawyers. It was developed after countless hours in Keenan’s exclusive Florida workshop focused on the important topic.

Reptile seminar agenda included case selection, rules (and more rules), focus groups, depositions, arbitration, and trial (voir dire, opening, experts, defenses, demonstrative exhibits, and closing). Nursing home case scenarios covered wrongful death.

Mr. Waterman currently is handling several nursing home cases. Most involve patient falls.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

Hospitals and nursing homes decry and lobby against patient claims for medical malpractice. But Virginia Business’ 2013 “Big Book” shows 50 healthcare institution to be “big business” in Virginia - with at least a half-dozen healthcare systems and even stand-alones to have collected more than one billion dollars apiece from their patients back in 2011! Id. at 123-126.

The 900-pound gorilla of hospitals is Inova with combined patient net revenues of $1,650,425,809.00 based on 3 locations: $1,148,883,881.00 from Fairfax in Falls Church; $263,410,117.00 from Fair Oaks in Fairfax; and $238,131,811.00 from Loudoun in Leesburg. Weighing in at $1,072,063,368.00 is Bon Secours Health System based on 3 of its hospitals (not even counting Mary Immaculate in Newport News): $457,096,292.00 from St. Mary’s in Richmond; $310,769,214.00 from Maryview in Portsmouth; and $304,197,862.00 from Memorial in Mechanicsville. Third appears to be Sentara Health System, with patient revenue nets of $646,103,556.00 from Norfolk General in Norfolk, $271,248,011.00 from Virginia Beach in Virginia Beach, and unpublished amounts from its CarePlex in Hampton and its Community Hospital (now Regional Medical Center) in Williamsburg. A close fourth, if not third, is Carilion Health System, which collected patient revenues of $841,691,584.00 from its Medical Center in Roanoke alone.

Other substantial patient revenue stand-alones are: $1,022,764,802.00 for VCU Health System in Richmond, $264,595,293.00 for Chesapeake Regional Medical Center in Chesapeake, $251,457,085.00 for Children’s Hospital of the King’s Daughters (“CHKD”) in Norfolk, and $373,828,112.00 for Riverside Regional Medical Center in Newport News. Of course Riverside Health System derives significant additional patient revenues from the many physician practices and other facilities it controls on the Peninsula, including its upcoming Doctor’s Hospital in Williamsburg near the Kingsmill subdivision.

Mr. Waterman has sued Bon Secours, Sentara, and Riverside for medical malpractice. He is looking toward suit against Chesapeake Regional Medical Center too.

The Gardens at Warwick Forest in Newport News is reported as the nursing home getting the most patient revenues on the Peninsula. At $18,042,013.00 annually in 2011, The Gardens was not far behind top state’s nursing home at $30,704,731.00.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

AAJ’s March 2013 Trial issue also reports 2 medical malpractice topics. One is under “Verdicts and Settlements,” the other a feature article.

“Oxycodone Overdose” details a Florida jury verdict for $5,330,000.00 for wrongful death. The victim patient had been prescribed hundred of Oxycodone pills before dying in his home. Id. at 10-11.

“Establish Elopement Liability” deals with nursing home responsibility for residents allowed to wander off-premises. More complex than they may seem, such professional negligence cases required experienced lawyers to evaluate facility assessment, intervention, responses, etc. Id. at 36-39.

Mr. Waterman has a wrongful death case no. CL11-1316 pending in Williamsburg, Myron M. Arshan, Executor of the Estate of Sharon L. Britt, Deceased v. Stephen E. Plotnick, M.D., et al. It seeks $10,350,000.00 for fatal overdose of Fentanyl, Methadone and Olanzapine.

He also currently has several nursing home cases locally. Most are patient falls, including at least two for wrongful death.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

On March 4, 2013, the United States Supreme Court decided the medical malpractice case of Levin v. United States, No. 11-1351. It upheld a military veteran’s suit for intentional tort against the United States for a Navy surgeon allegedly operating on a patient without consent in the course and scope of his employment.

Justice Ginsburg authored the Levin medical malpractice opinion. It decided that the Gonzalez Act abrogated the intentional tort exception of the Federal Tort Claims Act for medical battery.

During March 8-9, 2013, Mr. Waterman was a speaker and a panelist at the national “Winning Medical Negligence Cases” seminar in Scottsdale, Arizona. The 2-day seminar was presented by the American Association for Justice (“AAJ”), the nation’s largest association of plaintiff trial lawyers.

Mr. Waterman’s topic was “Falls in Hospitals and Nursing Homes: Getting Institutional Discovery to Prove Fault”. He was invited to be seminar faculty based on his recent $3,500,000.00 jury verdict for an 88 year-old patient fall victim of Riverside Hospital, Inc. in Newport News, Virginia.

On March 23, 2013, The Virginia Gazette reported his medical malpractice presentation. Likewise on April 3, 2013, TidewaterBiz!, the new online weekday business publication of dailypress.com headlined his legal recognition.

Healthcare providers, insurers and so-called “tort-reformers” are wont to attribute high rising healthcare costs to medical malpractice claims. However, such self-serving cries belie statistics that put medical negligence claims at less than 1% - possibly less than ½ of 1% - of all healthcare costs.

TIME’s Special Report, “Bitter Pill: Why Medical Bills are Killing Us” by Steven Brill, exposes huge drug mark-ups, hefty executive salaries, and more institutional excesses. The following is a link to that publication on February 20, 2013, as revised February 26, 2013: http://healthland.time.com/2013/02/20/bitter-pill-why-medical-bills-are-killing-us/.

On February 21, 2013, Brill was interviewed at length by Jon Stewart on The Daily Show, per the following link: http://www.thedailyshow.com/full-episodes/thu-february-21-2013-steven-brill. Brill also was interviewed recently on National Public Radio (“NPR”).

On March 1, 2013, New York Times published “Shocked, Shocked, Over Hospital Bills,” by Uwe E. Reinhardt of Princeton, arguably the most respected healthcare economist in America. The link to his article, which amplifies some of Brill’s illustrations of healthcare gouging, follows: http://economix.blogs.nytimes.com/2013/03/01/shocked-shocked-over-hospital-bills/?ref=business.

On March 6, 2013, Mr. Waterman filed Plaintiff’s Motion to Enforce 1/23/13 Hearing Order in William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, et al., No. CL12-4966 in Circuit Court for York County, Virginia. It is a medical malpractice case seeking $4,550,000.00 in damages.

The corporate Defendant in Snovell, Williamsburg Facility Operations, asserts it had a functioning chair alarm in place before the patient fall. However, it has failed to produce the chair alarm in question as ordered - indeed, it represents without explanation that the chair alarm in question “is no longer available”.

Snovell corporate Defendant, Williamsburg Facility Operations, also represents that it used only 2 different types of “bed/chair alarms” made by 1 manufacturer at its nursing home, Consulate Health Care of Williamsburg, when the patient fell. But it also has not offered examplars of each bed/chair alarm, or even identified the manufacturer’s name and models.

The victim patient in Snovell allegedly suffered wrongful death: after she fell, the corporate Defendant’s personnel put her back to bed with broken ribs and she suffered an ultimately fatal pneumothorax. There is no hearing date on Plaintiff’s Motion.

THE VIRGINIA STATE BAR REQUIRED ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

Trial magazine of the American Association of Justice reported a half-dozen notable “Verdicts and Settlements” in its February 2013 issue. Three were variants of medical negligence. Id. at 8-11.

A Georgia jury awarded $3,400,000.00 for medical malpractice against a clinic physician’s assistant using a dirty syringe needle that caused staph infection, painful sepsis, and ultimate suicide. Id. at 10. Also, a $1,000,000.00 settlement was paid in California for a jail suicide were a mental health professional returned a depressed schizoaffective detainee to the general prison population while awaiting transfer to a psychiatric hospital.

A confidential settlement was paid for a wrongful death in Greater Pittsburgh where ambulance crews failed to pick-up a heart attack victim during a heavy snow storm. The dispatcher required the immobile patient to walk his unplowed street to the ambulance instead of having the crew walk to the patient or use a four-wheel drive vehicle.

The February 2013 issue of Trial, a monthly magazine of the American Association for Justice (“AAJ”), is titled “DANGER ON THE ROAD”. Its focus is on vehicle accidents.

There are five major articles: (1) “Discovery Issues in Distracted Driving Cases,” id. at 14-20; (2) “SMALL TRUCKS, BIG REGULATIONS,” id. at 22-25; (3) “Put the Brakes on ‘CURBSIDE’ Bus Abuse,” id. at 26-32; (4) ”HANDLING A DRIVER FATIGUE CASE,” id. at 34-38; and (5) “Sound Science in Low-Damage Collisions”. Id. at 40-44. They recount numerous cases of wrongful death and other serious personal injury attributable to offending drivers.

Mr. Waterman has been a member of AAJ (formerly American Trial Lawyers Association) for decades. On March 9, 2013, he speaks on patient falls at AAJ’s seminar on medical malpractice in Scottsdale, Arizona. Id. at 54.

On February 1, 2013, the corporate Defendant in the medical malpractice lawsuit of William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, D/B/A Consulate Health Care of Williamsburg, and “Jane Roe/John Doe,” No. CL12-4966 in Circuit Court for York County, Virginia, served supplemental discovery responses as ordered by the Judge. It also produced its 2-page Root Cause Analysis for Fall, minimally redacted as Court-ordered.

Despite both of its pages bearing at the bottom the self-serving pre-printed legend “ATTORNEY/CLIENT PRIVILEGED CONFIDENTIAL WORK PRODUCE - QUALITY ASSURANCE,” Snovell Defendant’s Root Cause Analysis for Fall bears at the top of its first page the subheading “Data Collected at Time of Fall”. Thus, despite Defendant nursing home couching and arguing its basic data was supposedly privileged material, the truth is that on the face virtually all of it really was factual information of patient care that is discoverable.

In its supplemental discovery responses, Defendant Consulate Healthcare of Williamsburg claims that the patient’s “chair alarm was in place but the box didn’t alarm” before the patient fall. Assuming the chair alarm was “in place,” the remaining pivotal question in Snovell is whether the alarm was activated before the fall, particularly in light of the defense claim that it was “functioning”.

Conveniently for the corporate Defendant, it claims that the “particular alarm in use on Ms. Snovell’s chair is no longer available,” indicating that Consulate Healthcare of Williamsburg disposed of - or “lost” - that key evidence, knowing that an alleged wrongful death was involved. Under such suspect circumstances, the victim patient’s estate representative deserves and will seek an evidentiary spoliation instruction against Consulate Healthcare of Williamsburg in Snovell.

During February 7-9, 2013, Mr. Waterman attends the annual conference of the Southern Trial Lawyers Association (“STLA”) in New Orleans, Louisiana, which coincides with Mardi Gras. It features 3 days of continuing legal education on vehicle accidents, medical malpractice, product liability, and other special cases, including brain injury and wrongful death.

Mr. Waterman began his legal career in New Orleans, practicing automobile product liability and medical malpractice. He has been a member of STLA for more than a decade.

STLA publishes a glossly quarterly entitled JUSTLAW. Its issue for First Quarter 2013 features “Maximizing Economic Damages,” “The Jones Act,” “Punitive Damages in the Interstate Trucking Unsafe Equipment Case,” and “How To Spot a Product Liability Case: A Method for Analyzing [Auto] Accidents”.

On January 29, 2013, Circuit Court for the City of Newport News, Virginia, entered Final Judgment Order in Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15. On December 7, 2012, the jury unanimously awarded $3,500,000.00 in damages against Defendant, Riverside Hospital, Inc., in favor of its brain injury victim.

Defendant Riverside Hospital, Inc., filed Notice of Appeal in the Burrell case on January 30, 2013; and must post a $1,900,000.00 appeal bond within 21 days to suspend collection by Plaintiff against it. Its medical malpractice victim also intends to file Notice of Appeal this month, cross-appealing against Riverside Hospital, Inc. on multiple points.

In Burrell, the then 81 year-old intermittently-confused in-patient at Riverside Regional Medical Center suffered a patient fall and resulting broken femur, head injury, and permanent hemiplegia. Suit was filed against Riverside Hospital, Inc. for its failure properly to assess its in-patient as a high unto extreme fall risk and for its failure properly to intervene, including by simple activation of her built-in bed alarm, use of a sitter and/or use of soft restraint (like it did for 5 days straight after its in-patient already was seriously injured permanently).

Previously by Fax Memorandum on January 22, 2013, Mr. Waterman was notified that a Summary of the Burrell brain injury case would be published electronically on LEXIS-NEXIS, on www.verdictsearch.com, and possibly in Metro Verdicts Monthly.

On January 21, 2013, Virginia Lawyer’s Weekly ranked Mr. Waterman’s $3,500,000.00 jury award as trying for 9th of “Virginia’s Largest Verdicts of 2012”. It was in the medical malpractice case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in Circuit Court for the City of Newport News, Virginia.

In the same issue, Virginia Lawyer’s Weekly also reported his $3,500,000.00 jury award more extensively under its “Verdicts & Settlement”. That caption was “Plaintiff claims hospital fall led to brain injury”.

On January 23, 2013, the Motion to Quash of Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, the Patient’s Motion to Enforce Va. Code Ann. §8.01-413(C) Subpoena, and the Plaintiff’s Motion to Compel were heard in the $4,550,000.00 wrongful death case of William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, et al., No. CL12-4966 in Circuit Court for York County, Virginia. The Court recessed during hearing for in camera review of the 2-page Root Cause Analysis for Fall and the 2-page Determination of Unavoidable Accident that Defendant healthcare provider was continuing to withhold from its deceased patient’s representative.

The Court in Snovell found that the nursing home’s 2-page Root Cause Analysis for Fall is factual in nature, except for its last question-and-answer paragraph on the second page entitled “How The Event Might Be Prevented In The Future,” which is deliberative analysis; that all such factual information is discoverable; and that the deliberative analysis is privileged. The Court found further that the 2-page Determination of Unavoidable Accident is entirely deliberative analysis, contains no factual information, and is privileged.

Hence the Court in the Snovell patient fall lawsuit ordered Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg to provide forthwith to its deceased patient’s representative its 2-page Root Cause Analysis for Fall, except for redaction of its last question-and-answer paragraph on the second page. The Court did not require it to provide the 2-page Determination of Unavoidable Accident.

In the Snovell medical malpractice proceeding, the Court also ordered that Defendant, Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, provide discovery responses to Plaintiff in-hand by Monday, February 4, 2013. Such required information and materials includes the identity and addresses of current and former personnel; details underlying its discoverable 2-page Root Cause Analysis for Fall; the actual bed and chair alarms for inspection and photographing; and a corporate verification.

The deposition videotape of Patricia [Hoadley] Williams, Midas System Manager (formerly QMS Coordinator) for Defendant, Riverside Hospital, Inc., was taken on October 29, 2008. Hers is the third of 22 to be run on Mr. Waterman’s website from his patient fall jury trial, Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in Circuit Court for the City of Newport News, Virginia.

In the Burrell brain injury lawsuit, Ms. Williams delineated the computerized incident reporting systems of Defendant, Riverside Hospital, Inc.: in its Quality Management System (“QMS”), data is input from paper incident reports; while in its newer Midas system operational since January, 2006, “witnesses” enter incident information directly into the database remotely from computer terminals anywhere, id. at 12-14 and 18-19; which Ms. Williams can and does revise ex post facto. Id. at 21-22 and 25. She also testified about Riverside Dep. Ex. 2, QMS Transaction Summary Report, id. at 8; Riverside Dep. Ex. 3, Midas System Printouts, id. at 10-11; and Riverside Dep. Ex. 4, Ames Dep. Ex. 6, Fall Quality Care Control Report (“QCCR”). Id. at 34.

The deposition videotape of Joann Rae “Jodi” Friend, Director of Risk Management for Riverside Health System, whose office is located at Riverside Regional Medical Center in Newport News, Virginia, was taken on October 29, 2008. It is the second of 22 to be launched on Mr. Waterman’s website from his medical malpractice trial during November 26-December 7, 2013, Burrell v. Riverside Hospital, Inc., No. CL1101633F in Newport News Circuit Court.

On November 27, 2012, Ms. Friend was called as one of Plaintiff’s early case-in-chief witnesses. In videotape deposition, Ms. Friend testified why and how she as Riverside’s Risk Manager “waived,” i.e., wrote off, the Burrell brain injury victim’s unpaid hospital bill balance by Authorization to Charge to Risk Management, id. at 12-14 - which Plaintiff at trial unsuccessfully sought to introduce as an admission or statement against by conduct under the circumstances, and which adverse ruling Plaintiff has preserved for cross-appeal.

Also in videotaped deposition, Ms. Friend identified a Quality Management System (“QMS”) Transaction Summary a/k/a the “expenditure report” printout of Riverside Hospital, Inc. for the Risk Management waiver re the patient fall victim in Burrell. QMS and Midas are computer program databases of Riverside Hospital, Inc., including for risk management purposes. Id. at 21-25.

The deposition videotape of Christopher Stolle, M.D., Vice-President of Medical Affairs at Riverside Regional Medical Center in Newport News, Virginia, taken on February 26, 2009, is the first of 22 deposition videotapes to be posted on Mr. Waterman’s website from Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in the Circuit Court for the City of Newport News, Virginia. If Riverside Hospital, Inc. appeals the $3,500,000.00 brain injury verdict against it, VP/Dr. Stolle’s trial testimony transcript should be available by Spring for supplemental posting along with Plaintiff’s Trial Exhibit 30.

On November 27, 2012, the medical malpractice victim called VP/Dr. Stolle as an early case-in-chief fact witness at jury trial in Burrell. Notably, VP/Dr. Stolle testified about certain Riverside record-keeping re factual information of patient care not included expressly in its patient chart; and through him, the Burrell victim introduced into evidence Plaintiff’s Exhibit No. 30, the internal computer database printout of Riverside Hospital, Inc. that stated inter alia its high unto extreme fall risk patient’s mental status was “very confused”.

On January 7, 2012, Virginia Lawyers Weekly (“VLW”) newspaper headlined on the front page: “A return to ‘Riverside’: Patient’s $3.5M verdict for fall prompts comparisons to 2006 case”. VLW’s print version is substantially similar to its prior online reporting of Mr. Waterman’s Newport News brain injury case against Riverside Hospital, Inc.

However, VLW’s print article covered Mr. Waterman using his “2006 Riverside opinion to introduce into evidence four incident report documents with information not included in the patient’s chart”. Id. at 21. It also covered Newport News Circuit Court denying on January 2, 2013, the post-trial Motion of Riverside Hospital, Inc. to set aside the medical malpractice verdict against it. Id.

In the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, Mr. Waterman deposed on videotape 22 Riverside representatives, essentially all as “most knowledgeable persons” pursuant to Va. Sup. Ct. Rule 4:5(b)(6). They are: Ann Fox Andrews (12/3/09), Emily Theal Edwards (4/23/09), Tikishia Monique Everett (12/22/08), Joann Rae “Jodi” Friend (10/29/08), Deborah Lynn Gressett (10/30/08), Stephanie Hadley (12/22/08), Ramona English Hercules (10/30/08), Christine Frances Hill (12/17/08), Delores K. Kitchin (12/3/09), Lisa Michele Morgan (4/23/09), Michelle Walls Morris (12/22/08), Christina Marie O’Brien (2/26/09), Tricia O’Grady (2/26/09) Shrikant Lalaji Patel (2/26/09), Susan Sale (2/23/09), Christopher Stolle, M.D. (2/26/09), Michelle Thomas-Eckroade (12/3/09), Joyce Carolyn Turner (12/17/08), Deborah C. Walton (10/30/08), Jacqueline B. Ward (4/23/09), Patricia Williams (10/29/08), and Michelle Snyder Wooten (12/17/08).

Ultimately, Mr. Waterman plans to launch them on www.YouTube.com, having purchased a YouTube platform. Meanwhile, this Blog will highlight each Riverside deposition videotape from the Burrell brain injury lawsuit as they are posted on his website, beginning with Dr. Stolle.

On December 28, 2012, the Virginia Supreme Court quickly vacated a Fairfax Circuit Court Order that enjoined a litigant from maintaining past accusative postings online and from posting again during the pending lawsuit. The unpublished opinion in Record No. 122157, Perez v. Dietz Development, LLC, expressly finds inter alia “the preliminary injunction was not justified”.

The Virginia Supreme Court’s Perez ruling - issued only 2 days after the appeal pursuant to Va. Code Ann. 8.01-626 - vindicates the propriety of Mr. Waterman posting contemporaneous case developments on this Blog. In 2010, 2011, and 2012, 3 medical malpractice Defendants - including Sentara and Riverside Hospital, Inc. - unsuccessfully have tried to deny Mr. Waterman’s state and federal rights of “free speech” online in a wrongful death, a patient fall, and another case through Circuit Courts in Suffolk, York, and Newport News.

In Perez, the American Civil Liberties Union (“ACLU”) of Virginia at www.acluva.org and the Public Citizen at www.citizen.org appealed the injunction Order as violating the First Amendment of the United States Constitution in addition to Virginia state law. Since Riverside Hospital, Inc.’s attempt to abridge Mr. Waterman’s Constitutional rights of “free speech” was in November, 2012, in the still-pending brain injury lawsuit, he yet may call upon ACLU of Virginia and Public Citizen to intercede on the topic.

On January 2, 2013, the Court issued its letter opinion in favor of Mr. Waterman’s client on all post-trial motions in the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. Those motions were heard on December 27, 2012.

First, the Court denied Defendant Riverside Hospital, Inc.’s Motion to Set Aside Jury Verdict in the Burrell medical malpractice lawsuit. Riverside Hospital, Inc. had filed an 11-page Memorandum in Support with 4 Exhibits consisting of 29 pages on December 14, 2012; and also a 7-page Memorandum in Reply with 2 Exhibits consisting of 15 pages, immediately before hearing on December 27, 2012.

Second, the Court granted Plaintiff’s Motion for Costs in the Burrell brain injury suit. It awarded Plaintiff $4,533.65 against Riverside Hospital, Inc. for filing fees, service fees and videographer/reporter fees, atop the jury’s verdict of $3,500,000.00 (which on Plaintiff’s oral motion on December 7, 2012, already had been reduced to the applicable statutory “cap” of $1,800,000.00).

Third, the Court granted Plaintiff’s Motion for Appeal Bond in the Burrell medical malpractice proceeding. It required Riverside Hospital, Inc. to post a bond of $1,900,000.00 as a prerequisite for appealing the Judgment Order to be drafted by Mr. Waterman and entered against it shortly.

On January 3, 2013, www.VaLawyersWeekly.com initially headlined “Patient’s fall leads to $3.5 verdict,” then revised its headline to "A return to 'Riverside': Patient's $3.5M verdict prompts comparisons to 2006 case". That top article covers Burrell.

The www.VaLawyersWeekly.com coverage marquees Mr. Waterman in Burrell “using high resolution imaging to dramatize alleged brain injuries for the jury,” including “’cutting edge’ 3.0 Tesla Magnetic Resonance Imaging, applying ‘fractional anisotropy,’ also known as Diffusion Tensor Imaging, and NeuroQuant Analysis”. It also presages: “An appeal of Shirley Burrell’s verdict against the owner of Riverside Regional Medical Center could offer a ruling on the admission of hospital policies and protocols” and on the “admissibility of hospital write-offs of patients bills”.

Www.VaLawyersWeekly.com reported further from Mr. Waterman’s Blog that Burrell asserted Riverside Hospital, Inc. was guilty of medical malpractice because it “omitted preventative measures such as relocating the patient closer to the nurses’ station, activating a bed alarm, using a sitter to keep watch, and using soft restraints like a ‘posey vest’.” Re some nurses not liking to use bed alarms despite their proven effectiveness, the online newspaper quoted Mr. Waterman: “Some false positives are a worthwhile inconvenience.”

Www.VaLawyersWeekly.com recounted the Virginia Supreme Court upholding Mr. Waterman’s $1,600,000.00 Newport News jury verdict in another patient fall trial against Riverside Hospital, Inc. in 2005, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006). It chronicled too that the “so-called Riverside [v. Johnson] standard [which clarified the law on admission of hospital incident reports] was codified by the General Assembly in 2011”.

If Riverside Hospital, Inc. ultimately seeks to appeal the jury verdict against it in the Burrell brain injury matter, then Mr. Waterman definitely will cross-appeal against both Defendants, Riverside Hospital, Inc. and Nurse Melanie Ames. Some of Plaintiff’s alternate grounds will be first “first impression” issues, as was the case in Riverside.

Trial’s December 2012 issue publishes “Elective Procedures, Not Elective Injuries.” That medical malpractice article covers holding “plastic surgeons accountable for clients’ injuries from elective cosmetic procedures.” Id. at 31.

It advocates, “If the plastic surgeon had reason to believe your client’s physical or mental condition would lead to complications or injury, the surgeon should be held liable.” Id. at 32. In addition to addressing other considerations, the Trial article evaluates each stage of a medical malpractice case for plastic surgery: Patient Candidacy, Preoperative Care, Intraoperative Care, and Postoperative Care. Id at 31-34.

Happy New Year!

Trial is the monthly magazine of the American Association for Justice (www.justice.org). Its December 2012 issue is dedicated to “RECLAIMING JUSTICE: BATTLING TORT ‘REFORM’,” which “reform” initiatives often result in medical malpractice legislation that limit victim rights.

Trial’s feature article, “The WEB of TORT ‘REFORM’,” exposes how Fortune 100 companies are trying to limit individual citizens’ legal recovery for product liability: “Major corporations have launched a concerted attack on the most basic tenets of civil justice. What they call tort ‘reform’ is in fact a disingenuous plot to convince Americans that corporations are on the side of ordinary citizens.” Id. at 15.

“The WEB” identifies a half-dozen corporate entities that campaign to restrict a person’s tort rights of redress for wrongful death and personal injuries:

1. Civil Justice Reform Group: CJRG, “comprising the general counsels of some of the largest and most profitable corporations in the world,” is at the “center of the campaign.” Id. at 16.

2. Institute for Legal Reform: “[M]ajor corporations hold the most sway” within the U.S. Chamber of Commerce’s ILR, which is “one of the largest players in the tort ‘reform’ movement” and whose “true goal is to benefit the interests of multinational corporations.” Id. at 16.

3. American Legislative Exchange Council: ALEC is “another secretive group of corporate lobbyists who write model legislation,” such as for “limiting access to the civil justice system for injured people [as] one of its top priorities.” Id. at 16.

4. American Tort Reform Association: ATRA “for many years functioned as the primary public relations arm of the tort ‘reform’ movement,” including with its “Judicial Hellholes project,” i.e., bashing of courts in which its members have lost big cases, and its “Astroturf organizing,” i.e., “faked grassroots support for limiting Americans’ legal rights.” Id. at 17.

5. Searle Civil Justice Institute: Based at George Mason University (“GMU”) in Arlington, Virginia, and affiliated with the Law & Economics Center there, the new SCJI turns focus of the tort reform movement to “academia,” commissioning on average $70,000.00-100,000.00 for the academic community to research and promote 10 suggested issue areas, “such as the ability of state attorneys general to contract with outside counsel, the use of pre-dispute mandatory binding arbitration clauses in contracts, the federal preemption of state tort laws, and class action litigation. Id. at 17.

6. Civil Justice Caucus Academy: Created by GMU’s Law & Economics Center in 2011, CJCA’s executive director immediately was the featured speaker at CJRG, attended by representatives of ILR, ALEC, ATRA, and major corporations. Id. at 17.

Major legislative initiatives of “tort reformers” include repeated attacks on the asbestos bankruptcy trust system and on state attorneys general retaining private law firms to prosecute product liability actions on contingency fees, such as was a success in the 1998 Tobacco Master Settlement Agreement. Id. at 17-20. Finally, “tort reformers” have focused efforts on the Federal Civil Rules Advisory Committee, toward imposing procedural restraints on the general public’s access to the civil justice system, particularly vis-à-vis spoliation of evidence and class action litigation. Id. at 22.

Trial’s companion feature article is “Spreading the Word about CIVIL JUSTICE.” Subtitled in part “As the civil justice system remains under attack, plaintiff lawyers are finding creative ways to highlight their role as defenders of public safety;” it highlights “BLOGGING for Justice,” “MARKETING that Matters,” and “Tell One Story at a Time.” Id. at 25-29.

Finally, Trial reports “Recap of Tort ‘Reform’ and Civil Justice Issues in the 112th Congress.” It recounts the historic defeat of H.R.5, the HEALTH Act, a Draconian medical malpractice bill that even a number of Republicans opposed and never got any traction in the Senate.

The December 2012 issue of Trial covers nursing home litigation. A feature article is “Weaving a NURSING HOME DEPOSITION STRATEGY.” Id. at 40-41. “When it comes to proving violations of the safety rules and resulting harm to the nursing home residents, you need to know the right questions to ask the defense witnesses, as well as how to dissect common defenses.” Id. at 40.

First, “Weaving” teaches that depositions must establish “standard of care” by developing the codified federal and state regulations and possibly the mirroring nursing home’s policies and procedures, per the following basic model: Assessment, Planning, Implementation, Reevaluation, and Communication. Id. at 41-42. Second, depositions must deconstruct the following general common medical malpractice defense arguments: (1) unavoidability (2) pointing the finger at the family or resident; (3) nursing judgment; (4) OBRA is not the standard of care; (5) policies and procedures are only guidelines; (6) poor documentation does not mean poor care; (7) custom and practice as evidence that care was provided; and (8) the unprepared witness. Id. at 42-44.

Third, depositions must marquee “systematic failures.” Id. at 44. “Once the deponent admits to a misstep in the nursing home model, the defense can no longer claim the injury was unavoidable.” Id. at 42.

Also, Trial’s “Verdict & Settlements” in December 2012 reported “Negligent Assistance to Nursing Home Resident.” A jury awarded $1,500,00.00 in a medical malpractice case of wrongful death. Id. at 10.

In the case reported, an 88 year-old died from complications of a patient fall. The facility nurse failed to take proper fall risk precautions and then to provide medical attention timely. Id.

Happy holidays!

On December 21, 2012, Best Lawyers in America featured a 2013 “Washington, D.C. & Virginia’s Best Lawyers” supplement to The Washington Post, The Richmond Times-Dispatch, and The Virginian-Pilot. Its cover story is “The Powerful Trial Lawyers at Patten, Wornom, Hatten & Diamonstein,” including Mr. Waterman who was recognized individually for both “Medical Malpractice Law - Plaintiff” and “Personal Injury Litigation - Plaintiff”.

“’We stand toe to toe with any big-city defense lawyers in the state,’ says partner Avery Waterman, a precedent-setting medical malpractice lawyer known as one of the top in the state. “We offer a level of sophistication and success that really is only found in a few firms’,” quotes the Best Lawyers’ Supplement at 3.

“’The people that we represent are families of permanently disabled breadwinners and deceased breadwinners who would never be on equal footing if we weren’t there to help’, says Waterman. ‘We give it everything at trial’.” Id.

“Indeed, says partner Avery Waterman, whose plaintiffs’ practice centers on medical malpractice litigation and catastrophic personal injury cases (such as brain injury, automobile and trucking accidents and the like), PWHD is known for being a go-to firm for some of the toughest cases to litigate. ‘The cases we take on require a significant commitment that is difficult to overstate,’ says Waterman, who has been with the firm since 1986, one of Virginia’s top medical malpractice attorneys. ‘In plaintiff’s practice, as we say, you only eat what you kill. So the risk is enormous but the reward for our clients is even greater’.” Id. at 15.

On December 20, 2012, the medical malpractice lawsuit of Myron Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia, came on for hearing on various Demurrers and Motions. Most issues were raised by the Plotnick Defendants, represented by Tracy T. Hague, Esq. of 349-lawyer LeClair Ryan based in Richmond.

First, the Court in the Arshan wrongful death suit granted Plaintiff’s Motion for Leave to Extend and denied Plotnick Defendants’ request for attorney’s fees and costs in opposition. Ms. Hague in her affirmative defenses of contributory negligence and assumption of risk requested a Reply under Va. Sup. Ct. Rule 3:11, which went unnoticed until 35 days after the deadline without Leave.

The Court in Arshan found no prejudice or bad faith and instead excusable neglect and prompt follow-up. Nonetheless, such Rule 3:11 pleading in medical malpractice and other cases remains a potentially serious trap for the unwary.

Va. Sup. Ct. Rule 3:11 provides plaintiffs “shall within twenty-one days” file a reply. It parallels Rule 3:8, which provides defendants “shall within twenty-one days” file a responsive pleading.

The Virginia Supreme Court mandates that the 21-day rule of Rule 3:5 (now Rule 3:8) must “be read in connection with Rule of Court 3:13,” Herndon v. Willis, 198 Va. 824, 826 (1957); and it must be the same with Rule 3:11. Rule 1:9 (formerly Rule 3:13) provides: “The time allowed for filing pleadings may be extended by the court in its discretion, and such extension may be granted though the time fixed already has expired….” Cf, Lennon v. Virginia Board of Dentistry, 2007 Va. App. LEXIS 475, *3-4 (2007).

The Virginia Supreme Court holds that the purpose of the 21-day rule for filing a responsive pleading by defendants is:

"[P]rescribing a time within which a defendant may and shall file his answer or other defense, is not to cut off the orderly presentation of defenses, or to set a trap for the unwary defendant by which a plaintiff may be delaying the prosecution of his cause cut off the defendant from a full defense or escape the necessity of providing his case. Its purpose is to prevent unconscionable delay in an orderly procedure … being caused by dilatory tactics on the part of the defendant or by the neglect of the defendant, where the plaintiff has shown due diligence on his part in the prosecution of the cause."

Worsham v. Nadon, 156 Va. 438, 446 (1931). The same salutary considerations underpin the 21-day rule for filing a reply by plaintiffs.

Hence, routinely numerous circuit courts have granted, and appellate courts have upheld, extensions of the 21-day rules. E.g., Lennon, supra at *5; Emrich v. Emrich, 9 Va. App. 288, 291-295 (1989)(“trial court abused its discretion in denying the request to file [late] answer”); Arshan v. Plotnick, No. CL11-1316, Order (Williamsburg/James City County Dec. 20, 2012)(Rule 3:11); Tarpley v. City of Martinsville, 82 Va. Cir. 222, 224 (Martinsville Feb. 9, 2011)(“lack of prejudice to the opposing party and the existence of a substantial defense”); Brown’s Buick, Inc. v. Granite State Ins. Co., 78 Va. Cir. 22, 23-24 (Alexandria Oct. 29, 2008); Sanders v. Shuttle America, 75 Va. Cir. 378, 379-381 (Loudoun Aug. 15, 2008)(motion for leave granted, despite being filed after motion for default); Nauman v. Samuels, 73 Va. Cir. 411, 412-416 (Charlottesville Jul. 10, 2007)(motion for default denied where defense “counsel’s inadvertence did not cause an ‘unconscionable delay’,” despite no responsive pleading being filed for more than 5 months); Fletcher v. Inova Health Care Servs., 71 Va. Cir. 331, 331-332 (Fairfax Aug. 2, 2006); Brown v. Allen, 64 Va. Cir. 349, 351-352 (Fairfax Apr. 8, 2004)(motion for default denied despite defendant filing responsive pleading a month late and seeking leave for the same more than 2 months later); Kohl v. Amerigas Propane, Inc., 64 Va. Cir. 49, 49-52 (Madison Feb. 4, 2004)(“ends of justice” required extension, despite no “excusable neglect”); Vasquez v. Commonwealth, 63 Va. Cir. 106, 107 (Fairfax Sep. 8, 2003); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 414, 424-436 (Portsmouth Aug. 13, 2003)(Rule 3:12, currently Rule 3:11); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 530, 531 (Hampton Nov. 22, 2002)(Rule 3:12, currently Rule 3:11); Northland Ins. Co. v. Reichold, Inc., 58 Va. Cir. 271, 273 (Portsmouth Feb. 27, 2002); Mack v. Starwood Hotels and Resorts Worldwide, Inc., 57 Va. Cir. 390, 392-395 (Norfolk Feb 26, 2002); Riddle v. CARS, 45 Va. Cir. 236, 238-239 (Rockingham Mar. 26, 1998)(default judgment set aside and late responsive pleading permitted for “ends of justice”); Grant v. Doe, 31 Va. Cir. 254, 255 (Louisa Jul. 1, 1993)(default judgment set aside and late responsive pleading permitted); Richardson v. Wheeled Coach Corp., 20 Va. Cir. 458, 459 (Loudoun Aug. 21, 1990); Parker v. 900 East Marshall Street Assocs., 17 Va. Cir. 426, 427-428 (Richmond Dec. 6, 1989); Consolidated Healthcare, Inc. v. Overseas Partners, Inc., 14 Va. Cir. 241, 241-242 (Henrico Dec. 27, 1988); Chittum v. Chittum, 4 Va. Cir. 280, 282-283 (Frederick Apr. 4, 1985)(“interest of justice”); Greene v. Smith, 4 Va. Cir. 488, 489-490 (Sep. 25, 1979)(“ends of justice” permitted filing responsive pleading almost 1 year late)(Stephenson, J.); and Standard Farms, Inc. v. Alexander, 4 Va. Cir. 463, 463-464 (Augusta Jan. 31, 1978)( “permitting late filings would ends of justice”)(Stephenson, J.). Judge Stephenson’s opinions granting late pleadings for “justice” in Standard Farms in 1978 and in Greene in 1979 undercut Plotnick Defendants’ attempted reliance on his earlier adverse decision in 1976 in Nida v. Hooker, 4 Va. Cir. 430 (Allegheny Nov. 29, 1976). Indeed, a circuit court’s exercise of discretion may be improper if it limits late responsive pleading. E.g., Westfall v. Westfall, 196 Va. 97, 100-105 (1954)(error for circuit court to impose condition on party filing responsive pleading 8 months late where it had not “delayed the progress of the case”).

Nonetheless, Plotnick Defendants in the Arshan wrongful death suit cite the Court of Appeals’ 1989 opinion in Emrich (which granted leave for late pleading) and several random circuit court decisions. Plotnick Defendants ignore the Court of Appeals’ 2007 opinion in Lennon, which explains that Emrich’s list of “several ‘circumstances which support the exercise of discretion to extend the time of filing’,” however, “clearly … is not exhaustive or necessarily determinative; the application of the rule ‘rests within the sound judicial discretion of the trial court, it being impossible to lay down a rule which will be binding in all cases’.” Id. (quoting Eagle Lodge v. Hofmeyer, 193 Va. 864, 870, 71 S.E.2d 195, 198 (1952)).” 2007 Va. App. LEXIS 475, *4 (emphasis added).

The decision in Executive Homes Realty Corp. v. Mathews, 38 Va. Cir. 486 (Williamsburg/James City Mar. 27, 1996), cited by Plotnick Defendants, is readily distinguishable and inapposite on the facts. Unlike Plaintiff in the Arshan medical malpractice case, the late party in Executive Homes never filed a late reply - or even sought leave to do so - and instead simply let their delinquency unto default be decided against them on summary judgment. Id. at 490-491.

Likewise, Spradling v. W.O. Grubb Steel Erection, Inc., 61 Va. Cir. 607, 608 (Newport News Mar. 11, 2002), also cited by Plotnick Defendants in the Arshan wrongful death lawsuit, similarly is distinguishable and inapposite for the delinquent party never filing a late reply or even seeking leave to do so. More fundamentally, the Court in Spradling explicitly stated that the point of dicta cited by Plotnick Defendants at bar was “moot”. Id.

Bates v. Merritt, 83 Va. Cir. 134, 135-136 (Loudoun Jun. 29, 2011), additionally cited by Plotnick Defendants, is distinguishable and inapposite on the facts too. Unlike Plaintiff in the Arshan medical malpractice case, plaintiff in Bates did not request an extension, plus violated an existing Court Order that set a deadline for filing an Amended Complaint. Id.

Notably, the defense Memorandum in Opposition to Plaintiff’s Motion for Leave to Extend filed in the Arshan wrongful death case on December 17, 2012, may be used against LeClair Ryan in the future. If one of its Defendant clients fails to file a timely pleading in response to a Complaint, Counterclaim and/or Cross-claim, then Ms. Hague's Memorandum in Opposition would be good authority for entry of a default judgment instead of an extension of time.

Finally, the Arshan Court also overruled Plotnick Defendants’ Demurrer re punitive damages, finding Plaintiff sufficiently pleaded his wrongful death claim that Plotnick Defendants’ conduct was “so reckless as to evince a conscious disregard for the safety of others”. See, Va. Code Ann. §8.01-52; Virginia Model Jury Instruction No. 9.105 (Punitive Damages: Death by Wrongful Act); and Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 144 (1992). The Court also granted Plotnick Defendants’ Demurrer to Plaintiff’s “negligent retention” claim and Amended Complaint Paragraph 24(N); granted in part (in light of its ruling on “negligent retention”) and denied in part their Motion to Strike; and found moot Defendants’ Motion to Sever the "negligent retention" claim.

On December 14, 2012, The Daily Press headlined “Jury awards #3.5M to woman, 87, who fell” and www.dailypress.com headlined “NN jury makes $3.5 million award to 87 year-old.” The identical articles cover Mr. Waterman’s recent patient fall trial, Burrell v. Riverside Hospital, Inc., No. CL1101633F-15 in the Circuit Court for the City of Newport News, Virginia.

The Daily Press quoted Mr. Waterman re his sizeable favorable verdict for the 87 year-old: “It’s vindication that the elderly aren’t throwaways.” Historically, there has been a defense mindset that medical malpractice cases involving older victims are not worth much.

The Daily Press also quoted Mr. Waterman about the magnitude of the patient fall problem beyond Riverside. “It happens in hospitals and nursing homes in every health system. It’s a chronic problem in every state nationwide. It’s rampant.”

Riverside’s Risk Manager declined The Daily Press’ interview request about the patient fall case. Instead, Riverside issued a prepared statement, expressing disappointment with the $3,500,00.00 jury award, considering its appeal options, and extolling its quality.

The Daily Press article recounts the preventative measures that should have been used by Riverside for its victim in-patient: (1) relocating the patient closer to the nurse’s station; (2) using a bed alarm; (3) using a sitter; and (4) using soft restraints, like a posey vest. It recounts further that some nurses do not like using bed alarms because of “false positives,” but quotes Mr. Waterman that “some false positives are a worthwhile inconvenience” toward avoiding such serious personal injuries and even wrongful death.

The Daily Press highlighted Mr. Waterman calling 8 highly-credentialed experts among his more than 40 witnesses and him using new key technology to demonstrate the victim’s brain injury, including 3.0 Tesla MRI with its cutting-edge Diffusion Tensor Imaging (“DTI”) and NeuroQuant Analysis. Additionally, it marqueed Mr. Waterman’s reliance on his 2006 Virginia Supreme Court decision against Riverside - Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) - to introduce into evidence 4 “incident report” documents containing factual information of patient care that was not entered in the patient’s chart by Riverside personnel.

In Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F15 in Circuit Court for the City if Newport New, Virginia, the deadline for filing post-trial motions is December 14, 2012. In anticipation of Defendant Riverside appealing versus paying Mr. Waterman’s client the statutory medical malpractice “cap” of $1,800,00.00, Plaintiff is filing Motion for Recovery of Costs and Motion to Set Appeal Bond.

If Defendant Riverside does notice an appeal, the patient fall victim will cross-appeal against Riverside and Co-Defendant, Nurse Melanie Ames. Plaintiff’s appellate grounds will feature “first impression” questions such as the admissibility of Riverside’s restraint policy, its fall protocol, and its bill write-off as evidence.

Mr. Waterman has been invited to speak at AAJ’s Seminar on Winning Medical Negligence Cases with Rules of the Road in Scottsdale, Arizona, during March 8-9, 2013. The seminar is based on Rule of the Road (2d ed.) authored by CLE organizer, Patrick Malone, and Rick Friedman.

This morning in Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., Case No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, a jury awarded Mr. Waterman’s 87 year-old client $3,500,000.00 against Riverside Hospital, Inc. for her in-patient fall. For liability, Riverside relied on Nurse Janet Willersdorf of MCV; and for causation on Dr. Joel Bowers of Providence Hospital in DC.

In the Burrell medical malpractice trial, Mr. Waterman introduced cutting-edge 3.0 Tesla MRI, its "fractional anisotropy" a/k/a Diffusion Tensor Imaging ("DTI"), and NeuroQuant Analyisis. The Burrell jury verdict more than doubles Mr. Waterman’s 2005 Newport News jury verdict of $1,600,000.00 against Riverside Hospital, Inc. for another patient fall victim, which culminated in a landmark opinion of the Virginia Supreme Court, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006).

In the medical malpractice case of McKinney v. Virginia Assocs., P.C., No. 111869 (Sep. 14, 2012), the Virginia Supreme Court interpreted Va. Code Ann, 8.01-229(E)(3) and 8.01-380. A survival action filed within six months of non-suit of a wrongful death action was held timely. Id. at *7.

McKinney found that the underlying “cause of action was the defendant’s alleged medical malpractice resulting in injury to the decedent.” Id. at *6. “From this cause of action, two rights of action arose: (1) the decedent’s right to bring an action for personal injury during his lifetime, which survived to be carried on by his personal representative after his death, and (2) the personal representative’s right to bring an action for wrongful death.” Id.

On November 12, 15 and 19, 2012, first, second and third Final Pre-Trial Conferences were held in Shirley Frazier Burrell v. Riverside Hospital Inc., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. That lawsuit arising from a serious patient fall in 2006 finally will be tried before a jury during November 26-December 7, 2012.

At first FPTC on November 12th, the Court among other things ruled that Defendants’ expert, Nurse Willersdorf, could testify about bed alarms even though she asserts not having used any within a year of the medical malpractice alleged in Burrell. Much more significantly, the Court in Burrell followed the Virginia Supreme Court’s landmark opinion in Riverside Hospital, Inc. v. Johnson, 262 Va. 518 (2006) (“Riverside I”) and denied Defendant Riverside’s motion to exclude the “factual information of patient care” that it segregated from the patient chart in its claimed “peer review” records, including Plaintiff’s Exhibit No. 3 2/17/06 Midas “Unwitnessed Fall” Incident Report and 3/14/06 Midas “Additional Surgery” Incident Report; Plaintiff’s Exhibit No. 4, 2/16/06 Falls Abstraction Data Tool; Plaintiff’s Exhibit No. 11, 2/17/06 Procedures/ Practices Quality Care Control Report (“QCCR”); and Plaintiff’s Exhibit 30, 3/7/08 #67606 Summary Report Quality Management System (“QMS”) Printout, 6/28/06 #460610 Surgical Quality Patient Care (“QPC”) Committee Minutes, and 9/27/06 #460610 Surgical Quality Patient Care (“QPC”) Committee Minutes.

At second FPTC on November 15th, the Court in Burrell again followed the Riverside I patient fall case, overruled Riversides motion to exclude, and ruled that Plaintiff was entitled to introduce as “corroboration” of her nursing experts’ opinions that independently establish the prevailing “standard of care” (“SOC”) various materials taught to nursing students at Riverside’s own School of Health Careers, in addition to materials taught to nurses by Riverside in its hospital orientations, skills fairs, in-services, computer-based learning (“CBL”) and/or preceptorships. Those Riverside materials include, but are not limited to, Plaintiff Exhibit No. 39, 2003 nursing textbook from Riverside’s own School of Practical Nursing (L.P.N); Plaintiff’s Exhibit No. 47, 2003 nursing textbook from its own School of Professional Nursing (R.N.); Plaintiff’s Exhibit No. 33, JCAHO Prep 2004 CBL; Plaintiff Exhibit No. 36, Riverside’s “Patient Restraints,” CBL and; Plaintiff Exhibit No. 38, Riverside’s “Patient Safety Goals 2006”.

Additionally, the Court in the Burrell medical malpractice lawsuit yet again followed Riverside I, in which a Newport News jury awarded $1,600,000.00, overruled Riverside’s motion to exclude, and ruled Plaintiff also was entitled to introduce as “corroboration” of her independently-established nursing SOC opinions 3 hospital-wide policies of Riverside, 1 of which included a hospital-wide protocol. Those Riverside policies in Burrell are Plaintiff’s Exhibit 17, 4/04 Policy #01-01 “Patient Care Documentation”; Plaintiff’s Exhibit 18, 7/19/04 Policy #235 “Restraint Seclusion”; and Plaintiff’s Exhibit 19, 8/05 Policy #231 “Fall Prevention,” which includes “Risk Assessment” and “Precaution Protocol”.

Moreover, the Court in Burrell once again followed Riverside I, overruled Riverside’s motion to exclude, and held Plaintiff was entitled to introduce inter alia the incident report and Risk Manager’s testimony from Riverside I as “notice,” if improbably Plaintiff’s claim for punitive damages survives in Burrell; provided, however, that Plaintiff cannot mention punitive damages in opening, and any punitive damages evidence will not be admitted until after Plaintiff’s nursing SOC experts have testified. Plaintiff’s nursing expert testimony in Burrell is expected to be that Defendants’ alleged medical malpractice of not using a bed alarm, a sitter and/or soft restraints for the safety protection of high fall risk patient was a “wide deviation” from Virginia’s SOC, that it was “blatant” and a “no-brainer”.

Further, Riverside in Burrell was unsuccessful in trying to exclude substantial testimony of 5 Plaintiff retained experts. With little or no change, however, Nurse Cheeley of Chesterfield, Dr. Trieshmann of Hampton VA, Dr. Evans of UVA, Nurse Levin of Mass General, and Dr. Parvizi of Rothman Institute are permitted to testify at the Burrell patient fall trial as they had in their depositions.

Finally, at third FTCP on November 19th, in response to Riverside seeking “clarification” of the prior week’s medical malpractice rulings, the Court in Burrell reiterated the admissibility of Riverside’s 3 policies as “corroboration” and, subject to Plaintiff presenting a prima facie case of punitive damages, of Riverside I evidence as “notice” to Riverside. Notably the Court accepted the parties’ stipulation admitting cutting-edge NeuroQuant Analysis into evidence.

Tayloe Associates of Norfolk, Virginia (www.tayloeassociates.com) reported all 3 Final Pre-Trial Conference, plus other aspects of this patient fall case. Happy Thanksgiving!

The Richmond-based 349-lawyer 21-office law firm of LeClair Ryan, a professional corporation, is representing the Defendants in Mr. Waterman’s medical malpractice case for a patient fall victim, Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, which is scheduled for 2-week jury trial during November 26-December 7, 2012. The law firm of LeClair Ryan also is representing Defendants in Mr. Waterman’s medical malpractice claim of patient wrongful death, Myron M. Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg, Virginia, a primary Defendant of which is a doctor who lost his Virginia medical license.

On November 15, 2012, Tracy T. Hague, Esq. of LeClair Ryan served on Mr. Waterman in the Arshan wrongful death case 143 Requests for Admission plus a supplemental Interrogatory demanding details for any Request not admitted, and on November 16, 2012, she also served on him in Arshan Amended and Additional Requests for Admission; Responses and Answers to all of which are due at the end of Mr. Waterman’s trial with LeClair Ryan in Burrell. Under these disruptive circumstances, today Mr. Waterman is seeking from Ms. Hague of LeClair Ryan a 3-week extension of time to respond to her numerous discovery requests in the Arshan medical malpractice lawsuit simply to cover his 2-week jury trial in Burrell and his final pre-trial preparation during Thanksgiving holiday week beforehand; otherwise, Mr. Waterman will be forced to move the Arshan Court in Williamsburg for emergency relief, which Motion may have to be heard during his Burrell jury trial in Newport News with LeClair Ryan.

November 20, 2012, postscript: Mr. Waterman filed Plaintiff’s Motion for Extension of Time and for Emergency (Telephonic) Hearing in the Arshan wrongful death case. Shortly thereafter, Ms. Hague of LeClair Ryan agreed to the requested extension of 21 days after Mr. Waterman’s medical malpractice trial with LeClair Ryan in Burrell is scheduled to end.

On November 9, 2012, dailypress.com headlined: “Lawsuit filed in death of elderly Gloucester woman”. It reports the $4,450,000.00 medical malpractice suit filed by Mr. Waterman on November 5, 2012, Case No.: CL12000440-00 in Circuit Court for Gloucester County, Virginia, captioned Patrick Lee Cherrie, Administrator of the Estate of Gerda A Harvey, Deceased, v. Virginia Health Services, Inc., d/b/a Walter Reed Convalescent & Rehabilitation Center, Long Term Care of Tidewater, P.C. and Raina Winfrey, M.D.

The article recounts how the Defendants’ “high onto extreme” fall risk patient suffered a brain injury that proved to be fatal the 3rd time she fell in only 4 days. Defendants in Cherrie failed to give the victim the safety protection of a “bed alarm” – a highly effective pressure-sensitive system for beds and chairs – until after she suffered the fatal brain injury.

The Daily Press quoted Mr. Waterman, “It’s what they should have done previously, and not after the third [patient] fall.” Defendants in Cherrie also failed to move the victim closer to the nurse’s station after her 1st and 2nd falls.

The Daily Press notes that it was not able to get through to, or to hear back from, the corporate office of Virginia Health Services, Inc. for comment re its impending Cherrie newspaper coverage. Virginia Health Services is owner of the nursing home, Walter Reed Convalescent & Rehabilitation Services.

Defendants in the Cherrie wrongful death lawsuit have refused to turn over their complete incident reports for each of the 3 falls, providing only substantially redacted versions to the patient’s Estate Executor. Hence Mr. Waterman will issue a Subpoena Duces Tecum for the same, and seek enforcement vis-à-vis any “factual information of patient care” withheld by Virginia Health Services d/b/a Walter Reed.

In the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15, in Circuit Court for the City of Newport News, Virginia, Plaintiff’s orthopaedic surgeon was her attending physician during her Riverside hospital stay. He performed her initial and her repair orthopedic surgeries under general anesthesia and followed her before, during, and after the same.

That treating orthopaedic surgeon is designated as a medical malpractice expert in Burrell, in addition to what is stated in his chart entries. But Defendants do not want him telling the jury that his own “post-fall repair surgery worsened her pre-existing neurological [acute stroke] problems.”

Defendants in Burrell cite CNH Am., LLC v. Smith, 281 Va. 60, 68 (2011) and Tazewell Oil Co. v. United Virginia Bank, 243 Va. 94, 110 (1992). Both of those cases – which do not involve a medical doctor or even medical causation – are distinguishable from the particular patient fall facts at bar.

In Tazewell, the Virginia Supreme Court upheld qualification of an expert in “troubled businesses,” but not the “banking industry” with which he was not even “familiar generally”; and it is unclear whether that distinction in qualification really limited the parameters of his testimony versus simply his stature/weight before the jury. id.; which differs from what Defendants seek in the Burrell medical malpractice case. In CNH, the Court rejected an individual with only some experience in mining industry hydraulic systems testifying as manufacturing and design expert re agricultural disc mowers, where he “admitted that he was not an expert in the hydraulic systems of mowers and had no experience in the design or manufacture of mowers or any other agricultural equipment [and] lacked specific expertise in the hydraulics of disc mowers and was unfamiliar with the hydraulic system of this mower.” 281 Va. at 68.

For Defendants’ CNH quotation in Burrell (“expert’s qualifications must correlate to the opinions for which the expert is being offered”), see, Defendants’ Memorandum at 4; CNH cites as its authority, King v. Sowers, 252 Va. 71, 78 (1996). Unlike CNH or Tazewell, King actually is on point with the matter sub judice and favorable to the patient fall victim at bar, upholding a pathologist’s testimony about his radiological interpretation and rheumatological diagnosis - despite him admittedly not being an expert in the fields of radiology or rheumatology:

"Dr. Zimmerman testified that he regularly reviews CT scans, X-ray films, and other tests in evaluating tissue samples for the presence of disease. He explained that, although he has not had formal training in radiology and does not consider himself an expert in that field, he is able to read and interpret CT scans. Dr. Zimmerman further stated that, if he is unable to read a CT scan, he consults with a radiologist. However, he testified that he was able to read and interpret the CT scans of King’s eye without requesting a radiologist’s opinion. Dr. Zimmerman also indicated that, as a pathologist, he is familiar with the cellular manifestations that are characteristic of Sjogren’s syndrome.” *** We conclude that the trial court did not err in permitting Dr. Zimmerman’s testimony on these issues, since the evidence showed that he regularly evaluated CT scans in his pathology practice, and that he has skills and experience in recognizing Sjogren’s syndrome. The fact that Dr. Zimmerman did not qualify as an expert in radiology or rheumatology is relevant only to the weight to be given his testimony by the trier of fact."

Id. (citation omitted) (emphasis added).

Consistent with the patient fall position in Burrell, Lo v. Burke, 249 Va. 311, 318 (1995) and Butler v. Greenwood, 180 Va. 456, 462 (1942) uphold qualification of “orthopedic surgeon” and “general surgeon”. “[B]y the great weight of authority, a physician or surgeon is not incompetent to testify as an expert merely because he is not a specialist in the particular branch of his profession involved in the case; although this fact may be considered as affecting the weight of his testimony.” Id. (emphasis added) (“orthopedic surgeon…was permitted to answer a hypothetical question touching the brain condition of Mr. Greenwood,” who “was under the care of another doctor”).

Analogously to the medical malpractice Plaintiff in Burrell, the Lo Defendant argued “since Dr. Hall is a general surgeon and is not a radiologist or a pathologist, his opinion [that Defendant’s ‘negligence was a proximate cause of Burke’s death’] rested on mere conjecture and improperly was based on subjects on which he was not qualified to offer an expert opinion. We disagree.” 249 Va. at 318 (emphasis added). “In reaching this conclusion, we reject Dr. Lo’s argument that Dr. Hall improperly was allowed to offer opinion testimony on subjects involving radiology and pathology. Dr. Hall testified that while he is not qualified to examine pathology slides or read radiography films, the duties of a general surgeon include the review of reports of all the medical specialists involved in a case. *** Therefore, we conclude that Dr. Hall’s evaluation of pathology and radiology reports in formulating his expert opinion did not constitute improper opinion testimony.” Id. (emphasis added).

Thomas v. Builders Transp., Inc., 28 Va. Cir. 93, 95 (Amherst Apr. 3, 1992) also is on point with the Burrell patient fall victim’s position: “the fact that Dr. Rodman [a ‘family physician’ treating some patients with heart ailments,] is not a ‘cardiologist’ or cardiothoracic surgeon does not prevent him from giving an expert opinion on this issue [whether the vehicle collision caused the heart attack]. The fact that Dr. Redman may not be a member of one of these specialties only goes to the weight which the trier of fact may place on his testimony.” Id. (emphasis added).

Hollingsworth v. Norfolk So. Ry. Co., 279 Va. 360, 364 (2010) holds “a medical doctor is qualified to give expert testimony about the cause of human physical injury.” Supporting Plaintiff’s medical malpractice experts’ opinions in Burrell, the Virginia Supreme Court has “never required positive proof by scientific testing to establish a factual basis for medical diagnosis and opinion.” Bussey v. E.S.C. Restaurants, Inc., 270 Va.531, 537-538 (2005) (emphasis added)(“lay testimony is admissible to prove proximate causation” and “the lay testimony coupled with the doctor’s diagnosis was sufficient to support the jury verdict”).

Unlike the Tazewell expert who was not “familiar generally” with the banking industry or the would-be CNH expert who was not experienced with the product or its industry, Plaintiff’s treating orthopaedic surgeon in the Burrell patient fall lawsuit is very familiar and experienced with Plaintiff and her procedures/conditions at the pertinent time. Indeed, as her admitting physician, her attending physician, her orthopedic surgeon, and her prior orthopedic surgeon (for the identical procedure on the other hip in 2000), he clearly was the medical doctor most familiar, experienced and involved with Plaintiff, her procedures/conditions and various interactions during February 14-22, 2006.

In person on October 18, 2012, and by telephone on November 6, 2012, the Court heard Plaintiff’s Motion to Enforce Subpoenas Duces Tecum, VCU Health System’s Objections and Response to Subpoena Duces Tecum, and Defendants’ Motion to Quash Subpoenae Duces Tecum in the patient fall lawsuit of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., CL1601633F-15 in Circuit Court for the City of Newport News, Virginia. It made two rulings favorable to Mr. Waterman’s client.

First, the Burrell Court ordered, pursuant to Va. Sup. Ct. R. 4:5(b)(4)(A)(iii), that medical malpractice Defendants’ expert, Nurse Janet Willersdorf (who claimed that MCV/VCU’s Orthopaedic Unit did not have any “bed alarms” until 2009), had to respond to Sections I (B) and II (D) of her Subpoena Duces Tecum as modified to “bed alarms/alerts”. Second, the Court ordered pursuant to Va. Sup. Ct. R. 4:9(A) that non-party, VCU Health System, had to respond to Section D of its Subpoena Duces Tecum as modified to “bed alarms/alerts,” but only with responsive materials applicable to its Orthopaedic units on an individual and/or hospital-wide basis, i.e., MCV/VCU’s 10-page hospital-wide Fall Prevention Policy/Falling Star Protocol and its 6 pages of orientation training text booklets from its Orthopaedic Unit employee files.

MCV/VCU’s hospital-wide Fall Prevention Policy/Falling Star Protocol was effective in 2003 into at least 2006. Notably, it references use of “bed alarms” for high risk individuals to avoid having patient fall victims.

At discovery hearing on November 5, 2012, the Circuit Court for the City of Newport News, Virginia, granted the patient fall victim’s Motion to Compel against Defendant, Riverside Hospital, Inc., in Shirley F. Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15. Since August, 2012, Riverside had resisted tendering for Va. Sup. Ct. Rule 4:5(b)(6) deposition its corporate representatives most knowledgeable about exemplar bed with bed-alarm, posey-vest, and wrist restraint.

The disabled medical malpractice Plaintiff in Burrell seeks $10,350,000.00 in damages for Riverside’s alleged failure to assess and intervene properly for the high fall risk patient. Two-week jury trial is scheduled to begin November 26, 2012.

In Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, the patient fall victim suffered broken femur, head injury, and disabling stroke due to allegedly substandard fall risk assessment and intervention by her nurses at Riverside Regional Medical Center. Pre-trial, Riverside moves to keep from the jury the fact that it wrote off the portion of its billing that Tricare refused to cover because of it suspected third-party (Riverside) liability - which write-off under the circumstances the patient argues is an admission of liability or against interest by Riverside.

Riverside’s write-off of Plaintiff’s balance for the hospitalization at issue was subject of Rule 4:5(b)(6) deposition by Riverside’s two most knowledgeable persons: RHS Risk Manager, Joann Friend; and Patient Accounting Manager, Deborah Gressett. Identified in their medical malpractice depositions were Riverside Deposition Exhibits 1 and 2.

Riverside Dep. Ex. 1 is 2/14-22/06 Statement for $75,036.08 (Bates-stamp nos. 77–83), and 10/27/06 RHS Authorization to Charge to Risk Management for $1234.00 (Bates-stamp nos. 84–85). Riverside Dep. Ex. 2 is 10/27/06 QMS Transaction # 68137 Summary Report re the write-off for the patient fall.

On March 13, 2006, Medicare payments/adjustments of $73,802.08 left a balance due of $1,234.00. On May 12, 2006, Plaintiff’s secondary coverage, Tricare, denied the remaining claim for $1,234.00 “due to lack of response of [sic] the third party liability questionnaire” vis-à-vis medical malpractice; and Plaintiff was referred to Ms. Gressett.

Tricare’s Third Party Liability Questionnaire is “a form that Tricare is sending to the patient, questioning whether there’s other liability involved.” See, Gressett at 8.4–6. In this patient fall case, the other third party liability is Riverside’s liability as Plaintiff claimed.

On October 27, 2006, while still facing the medical malpractice specter of Tricare’s Third Party Liability Questionnaire (256 days after the patient’s fall), Defendants’ Risk Manager unilaterally “waived” internally the $1,234.00 remaining unpaid. See, e.g., Friend at 13. Patient Accounting implemented the Risk Manager’s Authorization, resolving the third party liability issue with Tricare. See, Gressett at 8-9

Defendants’ Risk Manager admits that all Riverside write-offs do not come from Risk Management. See, Friend at 21. She also admits that some of her write-offs are for medical malpractice “errors”. Id. at 19.

After-the-fact, Defendants’ Risk Manager frames it that by her unilateral internal write-off she was “hoping that maybe we could mitigate some of [Plaintiff’s family] anger or convince them maybe not to sue us.” Id. at 14. But the fact is that Defendants’ Risk Manager never ever communicated with the patient or her family, e.g., id. at 15; that Defendants’ QMS Summary Report indicated the “$1,234 WAIVED FOR … FALL/ FX,” [fracture], i.e., patient fall and resulting fracture; and that no documentation has any indication of the ostensible “expression of sympathy” now claimed.

A. ADMISSION OF LIABILITY

Defendants fail to cite its counsel’s pre-statute case on point with undersigned counsel, upholding the admissibility of unilateral write-offs, Schuster v. Posner, No. LA-134-3 (Richmond Mar. 24, 1997). In another medical malpractice suit, Richmond Circuit Court ruled that defendants’ medical bill write-off was admissible against interest, that defendants were free to try explaining it away, and that “it’s up to the jury to decide who to believe”. See, 3/24/97 Schuster v. Posner Transcript at 75. 11-96.20.

Also, in 2011 the post-statute medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia, held the defendants’ write-off and no-charge were admissible. Both were admitted at trial and plaintiff was entitled to argue they were admissions of liability.

B. EXPRESSION OF SYMPATHY

Va. Code Ann. §8.01–581.20:1, the “expression of sympathy” statute, provides:

"In any civil action brought by an alleged victim of an unanticipated outcome of health care, or in any arbitration or medical malpractice review panel proceeding related to such civil action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to the patient, a relative of the patient, or a representative of the patient, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section."

On its face, §8.01–581.20:1 does not apply to this patient fall case on 2 independent grounds.

First, there is nothing in the medical malpractice matter sub judice “expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” Second, nothing at bar was “made by a health care provider to the patient, a relative of the patient, or a representative of the patient.”

Moreover, on the particular facts of this patient fall case, §8.01–581.20:1 does not apply either. Faced with Tricare’s insurance coverage denial and the specter of Riverside’s “third party liability” – 256 days after its medical malpractice – Defendants’ Risk Manager quietly ponied up for the remaining costs of patient’s fall, did not express any sympathy to anyone, and did not even communicate with patient or family.

Under the circumstances, that constitutes an admission of medical malpractice liability or against interest by Riverside. Of course, Defendants remain free to claim otherwise to the jury.

Even medical malpractice defense lawyers commenting on the then-new statute shortly after its enactment emphasized that the “expressions of sympathy” contemplated were those made “to” the patient and family.

"E. Expressions of Sympathy

The effect of a health care provider's apology to a patient is a topic of much debate in both the legal and medical communities. The Veteran's Administration Hospital in Lexington, Kentucky adopted a novel disclosure policy concerning possible negligence, including requirements to notify patients of potential problems with their care and to hold face-to-face meetings with patients and their families to fully disclose all aspects of these problems. Several states have taken legislative approaches to this issue, enacting laws that provide civil immunity for those health care providers who express sympathy and benevolence to their patients. ***

Virginia is following the trend; health care providers in the commonwealth can now say "I'm sorry" to patients without fear of these sentiments being construed as an admission of liability at trial. The Virginia General Assembly incorporated into the Medical Malpractice Act a section focused solely on expressions of sympathy by health care providers. Virginia Code section 8.01- 581.20:1 provides that any ‘statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, or general sense of benevolence’ made by a health care provider are inadmissible as evidence of liability or an admission against interest when suit is brought against the health care provider by the patient to whom such expressions of sympathy were made."

Kathleen M. McCauley and Dana A. Dews, “Annual Survey of 2006: Medical Malpractice Law,” 41 U. Rich. L. Rev. 231, 243-244 (2006)(emphasis added).

A cornerstone of Plaintiff’s medical malpractice claim in Burrell v. Riverside Hosp., Inc., No. CL11-01633F-15 in Circuit Court for the City of Newport News, Virginia, is Riverside’s failure to use a “bed alarm” for the high fall risk patient. Use of a “bed alarm” is one of the relevant medical procedures per Plaintiff’s specific allegation in her Complaint at Paragraph 11 (B and C); specific itemizations in her Expert Designations; and repeated specifications in her experts’ depositions, including particularly that use of a “bed alarm” was the necessary first step preceding use of a sitter and/or restraint.

For the 2000 patient fall in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2005), Riverside similarly resorted to a nursing expert who claimed very limited exposure to “bed alarms,” toward undercutting them as standard of care: according to Nurse Vickers, her supposed “limited personal experience with bed alarms was [her] hospital finally getting around to trying [portable] bed alarms,” which “might have been in 1999”. Appeal Appendix at 2859. But Plaintiff successfully moved in limine to limit Vickers’ testimony because she thereby was “not qualified to testify on bed alarms”.

“The Estate argued that because Vickers had not had experience in activating bed alarms, she did not fulfill the active clinical practice requirement for a testifying expert. Code §8.01-581.20,” recounted the Virginia Supreme Court in the 2006 Riverside v. Johnson patient fall appeal. The trial court agreed with the Estate and allowed Vickers to testify about fall-risk assessment and fall-risk intervention measures other than bed alarms.” Id. at 534.

At deposition in the current Burrell v. Riverside case, Nurse Willersdorf, who has worked full-time at VCU/MCV for decades, testified that VCU/MCV in general and her Orthopaedic and its other units in particular (except possibly for its ICU) had no “bed alarms” until 2009. Hence by her own account, Nurse Willersdorf has not had any “active clinical practice” in “bed alarms” anywhere close to 1 year of Riverside’s 2006 medical malpractice.

As Johnson briefed to the Virginia Supreme Court in Riverside patient fall case, this Court determines “whether a proffered expert witness satisfies the active clinical practice requirement by referring to the ‘relevant medical procedure’ at issue in a case.” Hinkley v. Koehler, 269 Va. 82, 89 (2005)(citing §8.01-581.20). “‘Actual performance of the procedures at issue’ must be read in the context of the actions by which the defendant is alleged to have deviated from the standard of care.” Id. (emphasis added).

If a proffered expert has an active clinical practice in most, but not all, of the procedures at issue within one year of the duty breaches, a motion to disqualify as to the unproven procedure should be sustained before medical malpractice trial. Hartman v. Kleiner, 69 Va. Cir. 246 (2005). “The question whether a witness is qualified to testify as an expert is ‘largely within the sound discretion of the trial court’. * * * A decision to exclude a proffered expert opinion will be reversed on appeal only when it appears clearly that the witness was qualified.” Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 418 (2002)(emphasis added).

Since the landmark Riverside v. Johnson decision, Virginia Supreme Court and Federal Court alike have reaffirmed the “active clinical practice” requirement. E.g., Workman v. Baker, 2010 U.S. Dist. LEXIS 110022 (W.D.Va. Oct. 13, 2010)(Virginia law); Jackson v. Qureshi, 277 Va. 114, 124-125 (2009); and Lloyd v. Kime, 275 Va. 98, 110-111 (2008). That disqualifies Nurse Willersdorf from testifying vis-à-vis “bed alarms” in the pending Burrell v. Riverside patient fall lawsuit.

Lloyd reiterated: “The purpose of the requirement in §8.01-581.20 that an expert have an active practice…is to prevent testimony by an individual who has not recently engaged in the actual performance of the procedures at issue;” and “[T]he term ‘actual performance of the procedures at issue’ must be read in the context of the actions by which the defendant is alleged to have deviated from the standard of care.” 275 Va. at 110 (emphasis added). The Lloyd medical malpractice opinion affirmed that plaintiff’s expert “was not qualified to testify as an expert witness on standard of care as to Lloyd’s allegation of intraoperative negligence” because the expert had “no active clinical practice in performing spinal surgery”; despite him being qualified “as to Lloyd’s allegation of postoperative negligence”. Id. at 111.

Jackson emphasized that de minimis clinical practice of a procedure at issue does not satisfy the medical malpractice requirement of “active”: “Certainly, there may be instances when the expert’s clinical practice with regard to the medical procedure at issue is so de minimis that the witness would not meet the ‘active clinical practice’ requirement.” 277 Va. at 125. In Jackson, plaintiff’s expert performing the same sole procedure at issue in “’very similar’ clinical settings” satisfied the requirement. Id. at 124-125.

Applying Virginia medical malpractice law in Workman, United States District Court observed that it looks “both to plaintiff’s pleadings and to the allegations in her motion for judgment in order to determine that ‘the acts [plaintiff] claims form the basis of her action and violate the standard of care are medical procedures applicable’;” and that “[s]imply because the expert may be qualified to testify with regard to a medical procedure that is potentially relevant to the case at hand but not actually in dispute between the parties does not grant the court license to declare his competence on the issue.” 2010 U.S.Dist. LEXIS 110022, *18-19 (emphasis added). Workman rejected plaintiff’s argument that the particular medical procedure at issue “should be construed more broadly,” where plaintiff (like Plaintiff at bar) “targets the performance of the specific procedure, not just the general procedure which is inclusive of the specific” and, moreover, establishes a “significant medical distinction.” Id. at *20-27.

On October 15, 2012, Mr. Waterman filed Plaintiff’s Reply Memorandum in Shirley Frazier Burrell v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. Plaintiff victim in Burrell suffered a broken hip and disabling stroke following a patient fall at Riverside.

By her underlying Motion to Compel, Plaintiff seeks to depose Riverside through its most knowledgeable persons to identify the bed alarm and soft restraints customarily used by Riverside for its nursing orientation, nursing preceptorships, nursing in-services, nursing NetLearning and computer-based learning, and nursing schools as safety interventions to protect high-risk patients from falling. Plaintiff in Burrell seeks $10,350,000.00 in damages for Riverside’s alleged medical malpractice.

On October 4, 2012, Riverside Hospital, Inc. brought two Motions on for “emergency” telephonic hearing before the Judge in the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL11-1633 in the Circuit Court for the City of Newport News, Virginia. They were not well-founded, and Mr. Waterman prevailed on both Motions.

The Judge denied Riverside’s Motion to interpose one of its retained experts into Plaintiff’s case-in-chief. Riverside withdrew its other Motion to confine Plaintiff’s case-in-chief to the first week of the two-week Burrell medical malpractice jury trial, which is scheduled from November 26-December 7, 2012.

The patient fall victim in Burrell seeks $10,350,000 in damages for the broken leg and permanent debilitating stroke she sustained while under the care of Riverside and its nurses. In 2005, Mr. Waterman secured a $1,650,000 jury verdict against Riverside in another patient fall case in the same Court, which the Virginia Supreme Court upheld in Riverside v. Johnson, 272 Va. 518 (2006).

On September 28, 2012, Mr. Waterman argued Plaintiff’s Motion for Leave to Amend in the wrongful death suit of Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in the Circuit Court for the City of Williamsburg and James City County, Virginia. The Judge granted the Motion over the objection of Defendants, Dr. Plotnick and his PLLC, which formerly practiced medicine in Virginia Beach, Virginia.

This medical malpractice matter is controlled by Rule 1:8 of the Rules of the Virginia Supreme Court of Virginia. “Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added).

Over 50 years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend, which governs the Arshan wrongful death case. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).

Accordingly, where as in the Arshan medical malpractice action there really is no undue prejudice or previous amendment, the amendment should be granted. E.g., Mortarino v. Consultant Eng’g Sevs., Inc. 251 Va. 289 (1996); Kole v. City of Chesapeake, 247 Va. 51 (1994). Indeed, in Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001), upon dismissing claims for negligent supervision and training, sua sponte the judge granted leave to amend for claims of negligent hiring and retention.

Virginia Circuit Courts routinely grant leave to amend to further justice, this Arshan wrongful death lawsuit being no exception. E.g., Gagnon v. Burns, No. CL08-572 (Gloucester Jun. 16, 2009); Seibert v. Riverside Hosp., Inc., No. 40366-DP (Newport News Nov. 13, 2007)(medical malpractice); Pedigo v. Flattop Mountain Landowner’s Assn., Inc, 73 Va. Cir. 26, 33 (Greene Dec. 7, 2006); PMG Invs., LLC v. Gravely-Robinson, 71 Va. Cir. 140, 141 (Roanoke Jun. 14, 2006). In PMG, the circuit court granted an amendment on an appeal de novo from General District Court. In Pedigo, the circuit court granted leave to amend after sustaining a demurrer.

“A trial court that fails to allow amendments is likely to have abused its discretion. See, e.g., Peterson v. Castano, 260 Va. 299, 534 S.E. 2d 736 (2000); Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289, 467 S.E. 2d 778 (1996).” Drewery v. City of Roanoke, 63 Va. Cir. 609, 619 (Roanoke Sep. 7, 2001). Kole v. City of Chesapeake, 247 Va. 51 (1994); XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424 (2006); and Dirtselis v. Dirtselis, 2005 Va. App. LEXIS 451 (Nov. 8, 2005). The Supreme Court of Virginia and the Court of Appeals of Virginia regularly have reversed and remanded for denial of leave to amend. E.g., Peterson, 260 Va. at 303-304; Mortarino, 251 Va. at 295-296; Kole, 247 Va. at 57; XL, 47 Va. App. at 437-438; and Dirtselis, 205 Va. App. LEXIS 451 at *11-14. Unlike the judge in the Arshan medical malpractice hearing, the circuit court in Mortarino properly had sustained a demurrer, but “abused its discretion in failing to allow the filing of the amended motion for judgment”. 251 Va. at 296.

In Booher v. Botetourt County Board of Supervisors, 65 Va. Cir. 53, 59-61 (Botetourt Apr. 29, 2004), Defendants variously opposed the motion for leave to amend on grounds of it being unseasonable, the movant not showing it would not be futile, and the movant not having tendered the proposed amendment. But the court found no untimeliness despite months having past since initial filing, where there was no trial date or discovery. Id. at 60. Next the court in Booher rejected the futility assertion: “There is no technical burden upon a party seeking leave to amend to demonstrate that the amendment will not be futile. Nothing within the Rules of Virginia’s jurisprudence calls for such a showing.” Id. Then the Court held that although producing the proposed amendment at hearing “may be preferable and is often done, it is not required.” Id. Finally, Booher observed that the burden instead was on defendant opposing the Motion, who could not show undue prejudice. Id. at 61. When asked in the Arshan wrongful death argument, Defendants could not articular any undue prejudice.

Although Plaintiff’s amendment in the Arshan medical malpractice proceeding certainly reflects very badly on Plotnick Defendants, as did the 2007 record alteration/fraud allegations against Riverside Hospital in Seibert, supra, they are not unduly prejudicial to them. Like Riverside Hospital, Plotnick Defendants have nobody to blame for their underlying misconduct or their discovery misconduct besides themselves.

The Arshan wrongful death lawsuit granting amendment is “in furtherance of the ends of justice,” as mandated. Denial of amendment denies justice.

On September 24, 2012, The Wall Street Journal (www.wsj.com) headlined “How to Stop Hospitals from Killing Us,” subtitled: “Medical errors kill enough people to fill four jumbo jets a week. A surgeon with five simple ways to make health care safer.” Authored by a doctor who trained as a surgeon at one of Harvard Medical School’s prestigious affiliated teaching hospitals, is a surgeon at Johns Hopkins hospital, and developed the surgical checklists adopted by the World Health Organization; the article exposes rampant medical malpractice - and doctors’ unspoken “code of silence” about it.

Dr. Makary elucidates that doctors “absorb another unspoken rule: to overlook the mistakes of our colleagues.” The undeniable national statistics of medical malpractice are scary: U.S. surgeons operate on the wrong body part 40 times per week, 25% of all hospital patients are victims of medical errors, and medical errors are the 6th leading cause of death in the U.S. (with 98,000 wrongful deaths annually)!

Dr. Makary recounts medical residents joke about, and institutions protect, charming “Dr. Hodad” - whose fictive last name is acronym for Dr. “Hands of Death and Destruction”. Hence the author advocates 5 “relatively simple - but crucial - reforms” to minimize medical malpractice: (1) Online Dashboards; (2) Safety Culture Scores; (3) Cameras; (4) Open Notes; and (5) No More Gagging.

On September 21, 2012, Mr. Waterman filed Plaintiff’s Memorandum in Opposition to Defendants’ Demurrers and to Defendants’ Motion to Strike, plus lodged Amended Complaint with Exhibits, in Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia. The underlying Demurrers and Motion, Memo, and Amended Complaint concern Plaintiff’s medical malpractice claim.

Plaintiff “correctly notes that the independent tort of negligent retention is recognized in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 240 (2002). “[T]his cause of action is based on the principle that an employer…is subject to liability for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [patients],” Southeast Apartments Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (1999)(emphasis added), as Plaintiff’s Amended Complaint in the Arshan wrongful death suit alleges.

As authority for negligent retention, Southeast Apartments relies upon Phillip Morris, Inc. v. Emerson, 235 Va. 380, 401 (1988). Significantly, Philip Morris holds liability for “one who negligently retains an incompetent independent contractor,” 235 Va. at 401 (emphasis added); which Dr. Plotnick may be in the Arshan wrongful death lawsuit.

Any employer, even a charitable organization, is liable “for the negligent of its employees if it fails to exercise ordinary care in the selection and retention of those employees.” Infant C. v. Boy Scouts of America, Inc., 239 Va. 572 (1990)(citing J . . . v. Victory Tabernacle Baptist Church, 236 Va. 206, 208 (1988); Hill v. Memorial Hosp., Inc., 204 Va. 501, 507 (1963); Memorial Hosp. v. Oakes, Adm’x., 200 Va. 878, 885, 108 S.E.2d 388, 393 (1959); Norfolk Prot. Hospital v. Plunkett, 162 Va. 151, 153 (1934); and Weston’s Adm’x. v. St. Vincent, etc., 131 Va. 587, 610 (1921)). Importantly, that includes a closely-held healthcare entity being liable for negligent retention of a doctor, Hazzis v. Modjadidi, 69 Va. Cir. 385, 390-391 (Norfolk Dec. 19, 2005); such as the PLLC in the Arshan medical malpractice lawsuit being liable for alleged negligent retention of Dr. Plotnick.

Numerous Virginia Circuit Courts have permitted negligent retention claims to go forward. E.g., Hazzis (medical malpractice), supra; Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001); Flanary v. Roanoke Valley Soc’y for the Prevention of Cruelty to Animals, 53 Va. Cir. 134, 135 (Roanoke Jun. 26, 2000); Courtney v. Ross Stores, Inc., 45 Va. Cir. 429, 431-432 (Fairfax May 1, 1998); Tremel v. Reid, 45 Va. Cir. 364, 383-385 (Albemarle Apr. 20, 1998); Berry v. Scott & Stringfellow, 45 Va. Cir. 240, 244-247 (Norfolk Mar 27, 1998); and Johnson-Kendrick v. Sears, Roebuck & Co., 39 Va. Cir. 314, 319-321 (Norfolk May 31, 1996). In fact, this Honorable Court was one of the earliest ones to do so. Doe v. Bruton Parish Church, 42 Va. Cir. 467, 481-482 (Williamsburg/James City County Jul. 10, 1997).

Sitting in this Honorable Court by special designation of the Virginia Supreme Court in Doe v. Bruton Parish Church, Justice Lemons pronounced: “Based upon what is alleged in the pleadings, the factual basis for the claim of negligent retention appears weak but it is sufficient to withstand demurrer.” Id. at 482. In Flanary, supra, a single prior complaint sufficed as “actual notice” to support a negligent retention claim, while in the Arshan wrongful death case Plaintiff alleges actual notice of multiple prior complaints and incidents. 53 Ca. Cir. at 135. See also, Berry, supra, 45 Va. Cir. at 247 (plaintiff’s factual allegations “indicate that the [corporate defendant] had actual notice of [the individual defendant’s] propensity”).

Federal Courts likewise have upheld negligent retention claims under Virginia law. E.g., Blair v. Defender Servs., Inc., 386 F.3d 623, 629-630 (4th Cir. 2004)(Virginia law); Thompson v. Town of Front Royal, 117 F.Supp.2d 522, 531-532 (W.D.Va. Oct. 3, 2000)(Virginia law); and Call v. Shaw Jewellers d/b/a Sterling, Inc., 1999 U.S. Dist. LEXIS 636, *4-5 (E.D.Va. Jan. 7, 1999)(Virginia law). The Fourth Circuit in Blair reversed dismissal of a negligent retention claim, 386 F.3d at 629-630; while notably the Eastern District in Call also ordered discovery on the negligent retention claim. 1999 U.S. Dist. LEXIS 636, *5-7.

On September 19, 2012, The Virginia Gazette headlined “No alarms alerted that patient fell,” and subheadlined “Chart was allegedly ‘laundered’”. The article covers the $4,500,000.00 medical malpractice suit, William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, et al., Case No.: CL12004966, in the Circuit Court for York County, Virginia.

As the Snovell lawsuit and The Virginia Gazette article recount, the patient was “high-risk” for falling and allegedly should have had the benefit of a bed alarm as protection against falling. Yet she was not provided a bed alarm by Consulate Health Care of Williamsburg, predictably suffered a patient fall, and fortuitously was heard yelling for help by a visitor (not by Consulate Health Care nurses).

As the Snovell lawsuit and The Virginia Gazette also state, the patient suffered multiple rib fractures and a serious lung injury; but Consulate Health Care nurses simply put the patient back to bed, charted “fall without injury” that night and charted “no pain or discomfort” the next morning. In truth, however, the patient was complaining of severe pain, but was not rushed to the Emergency Room at Sentara Williamsburg Regional Medical Center until the following afternoon, and suffered allegedly wrongful death days later.

The Virginia Gazette quoted Mr. Waterman in Snovell: patient “falls are a chronic problem at nursing facilities and most are predictable and avoidable. He added that some manufacturers even build bed alarms . . . into hospital beds.” Id. at 12A.

Mr. Waterman has been a legal pioneer in Virginia patient falls, handling such cases for two decades. His 2005 $1,650,000.00 jury verdict for a patient fall victim in Newport News was upheld by the Virginia Supreme Court in Riverside v. Johnson, 272 Va. 518 (2006).

The monthly magazine of the American Association for Justice (“AAJ”), Trial, features in its September 2012 issue a medical malpractice article entitled “10 Red Flags in General Surgical Malpractice Cases”. It recommends considering the following topics in evaluating a surgical case for the source, diagnosis, and treatment of postoperative infections and other complications: CBC abnormalities, postoperative radiographs, biliary anatomy abnormalities, postoperative ileus, atypical operative durations, abscess or infection, OR returns, hospital returns, abnormal postoperative pain, and pathology. Id. at 40-45.

September 2012 Trial also features “Doubling Time in Delay-in-Diagnosis Cancer Cases”. The article recommends challenging the following defense theories in a medical malpractice case: assumption of a constant growth rate, heterogeneity in tumor doubling time, variability in estimates of mean doubling time, measurement error in tumor volume, tumor composition, lack of routine use in clinical practice, and persuasiveness of the theory. Id. at 34-38.

The September 2012 issue of Trial highlights “Science and the Law,” including nanotechnology and medical malpractice. Trial is the monthly magazine of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association, of which Mr. Waterman has been a member for over two decades.

A feature article is “Defense Expert Distortious”. Id. at 22-25. It follows a legal book updated in 2012 - Exposing Deceptive Defense Doctors - that counsels about misrepresented science, misstated credentials, and other deceptive practices of medical doctors and other experts hired by Defendants.

On August 31, 2012, Mr. Waterman filed William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, and “Jane Roe/John Doe” in Circuit Court for York County and the Town of Poquoson, Virginia. It is another patient fall case.

The State Medical Examiner has certified that the death of 81 year-old Bernadette Snovell was caused by her fall, fractured ribs, and pneumothorax suffered as a patient at Consulate Health Care of Williamsburg. Hence her husband as Executor of the Estate has alleged wrongful death.

Snovell claims medical malpractice arising principally from the alleged failure of Consulate Health Care of Williamsburg to engage bed/chair alarms ordered for her safety by her attending physician. Snovell also claims numerous other shortcomings, including inaccurate record-keeping, failure to relocate her near the nursing station, and material treatment delays.

The nursing home lawsuit seeks $4,550,000.00 in damages. In 2005, Mr. Waterman got a jury award of $1,600,000.00 for another fall victim at Riverside Hospital, Inc.’s Riverside Regional Medical Center in Newport News Circuit Court, which then record-setting verdict was upheld by the Virginia Supreme Court in 2006 in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

On August 10, 2012, Mr. Waterman filed Plaintiff’s Second Motion to Compel against Defendants in the medical malpractice case of Shirley F. Burrell v. Riverside Hospital, Inc., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. Among other things, Riverside now objects to answering about and to producing it’s fall risk assessment and intervention materials that it taught to its nursing students, its new nursing employees, and its existing nursing employees – which materials support the Plaintiff fall victim’s position and contradict Riverside’s position in Burrell.

In an earlier patient fall case, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the Virginia Supreme Court upheld the discovery and the admissibility of Riverside’s similar nursing school, orientation, preceptorship, and in-service materials. Mr. Waterman obtained a $1,600,000.00 jury verdict against Riverside in Newport News Circuit Court in Johnson.

On July 30, 2012, Mr. Waterman served Plaintiff’s Expert Designations in Burrell v. Riverside Hosp. Inc., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. That medical malpractice suit is scheduled for trial during November 26-December 7, 2012.

Plaintiff re-designated as retained experts Nurse Cheeley of Chesterfield Technical Center, Dr. Green of MCV, Dr. Parvizi of Jefferson Hospital, Dr. Rordorf of Harvard, and Dr. Trieshmann of Newport News. She also newly designated for her medical malpractice case Nurse Levin and Dr. Evans.

Nurse Levin, who opines Riverside committed multi-prong medical malpractice, is an orthopaedic trauma nurse and the Director of the National Association of Orthopaedic Nurses. Dr. Evans, who opines that Riverside’s alleged malpractice caused the patient’s hospital fall, stroke and permanent disability, holds a joint appointment at the University of Virginia School of Medicine as Professor of Radiology and Neurosurgery.

On July 12, 2012, Mr. Waterman served plaintiff's Second Motion to Compel in the medical malpractice lawsuit captioned Arshan v. Plotnick, et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia. The Motion seeks answers and responses from the defendant doctor and corporation to the Discovery Requests of the plaintiff executor for the estate of the deceased patient, Sharon Britt.

Re the Second Discovery Requests in the Plotnick wrongful death case, Dr. Plotnick and his professional corporation still are withholding their billings and any write-offs and write-downs from the deceased patient. Their billings evince what patient services they represented to third-party payors they provided to Ms. Britt, while any write-off/write-down arguably evinces an admission of fault/liability by them.

On July 10, 2012, Mr. Waterman served Plaintiff's Motion to Compel in the medical malpractice case of Myron M. Arshan, Executor of the Estate of Sharon L. Britt v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in the Circuit Court for the City of Williamsburg and James City County, Virginia. The deceased Williamsburg resident was found dead by her 8 year-old son in 2008 after accidentally overdosing on very powerful narcotics - Fentanyl, Methadone, and Olanzapine - prescribed her by the Defendant Virginia Beach doctor, whose medical license was suspended by Virginia's Board of Medicine shortly thereafter.

The final article in The Safety Report’s Spring 2012 issue is “A Story of Disfigurement and Deception”. It recounted a Colorado medical malpractice case in which a young woman was misdiagnosed with breast cancer by pathologists, recommended to undergo immediate removal of both breasts by her surgeon, and post-removal informed by other reviewing doctors that she never had cancer. Id. at 62.

“That is when [the patient] learned for the first time that she had been the victim of medical malpractice and a victim of the ‘code of silence,’ which dominates the medical community.” Id. Such professional negligence likewise may constitute medical malpractice under Virginia law.

An article in the Spring 2012 issue of The Safety Report is “GET INVOLVED… STOP NURSING HOME ABUSE”. It observes that “while nursing homes are supposed to offer a safe haven for our elderly, all too often these homes offer a bastion for abuse.” Id. at 16.

“Based on the best estimates available to the National Center on Elder Abuse [www.ncea.aoa.gov], between 1 and 2 million Americans age 65 or older have been injured or abused by someone on whom they depended for care or protection.” Id. Odds are that those numbers will continue to rise, as the Centers for Disease Control and Prevention estimates the average American currently lives to be roughly 78 years old, id., which is likely acturial to increase and with it the use of nursing homes.

Nursing home abuse may manifest in many different ways, e.g., patient falls, chronic bedsores, inadequate hydration/diet, and medication errors. In Virginia, such neglect constitutes medical malpractice for which the patient and/or survivors may be entitled to compensation.

A leading article in the May 2012 issue of Trial magazine is “ROBOTS Holding the Scalpel”. Its subheading is: “As surgeons and hospitals turn to robotic surgery, these systems will become a factor in more medical malpractice cases. Although cases involving robotic surgery resemble other malpractice suits, there was several unique considerations you must keep in mind.” Id. at 36.

Potential medical malpractice liability considerations include evolving standard of care, informed consent, learning curve, longer surgical time, open conversion, and (staff) machine setup. Id. at 38-40. “Because robotic surgery is so young and has little supporting data, the standard of disclosure of the risks and benefits that hospitals must provide each patient is fluid and evolving.” Id. at 38.

“Every new technology carries a learning curve.” Id. at 39. “Medical professionals have said it could take anywhere from 200 to 700 robotic-assisted surgeries for a surgeon to become highly proficient,” id.; which may have medical malpractice implications.

A feature article in Trial magazine’s May 2012 issue focusing on medical malpractice is “TAINTED Transplants”. Its subtitle is: “Patients may wait for years to be matched with a donor organ, but sometimes they contract diseases and infections from the organs that were intended to save their lives”. Id. at 28-29.

The Center for Disease Control (CDC) has made major changes to its 1994 Public Health Service guidelines, and its Office of Blood, Organ and other Tissue Safety has drafted 2011 guidelines. However, the Trial article observes that healthcare industry “emphasis has always been on monitoring transplant availability rather than unintentional disease transmission [and] precautions are not fail-safe,” thus raising the specter of medical malpractice. Id. at 31.

“The Uniform Organ Gift Act varies from state to state.” Id. at 34. “Under these acts, providers may be immune in performing transplantation surgeries with signed documentation, but they may not be shielded for poor decision-making, such as transplanting an HIV-infected liver,” id.; so medical malpractice lawsuits still may “help the victims seek financial compensation for medical bills, permanent disabilities, decreased quality of life, and pain and suffering – as well as help promote safer health care”. Id. at 30.

Trial is the monthly magazine of American Association for Justice (www.justice.org), of which Mr. Waterman has been a member for decades, and which annually devotes an issue to medical malpractice. Its May 2012 cover marquees “MEDICAL NEGLIGENCE: Cut to the heart of health care cases”.

The lead article is “The Problem with PRIVILEGES”. Its subheading is: “Medical malpractice may reveal another tortfeasor – the hospital that negligently granted credentials and privileges to the physician. Because the tort may not be apparent when the malpractice case is file, thorough discovery is important.” Id. at 15.

The second Trial article is “Why Words, Values, and Beliefs Matter,” by Mr. Waterman’s colleague Patrick Malone, co-author of Rules of the Road: A Plaintiff Lawyer’s Guide to Winning Liability and of Winning Medical Malpractice Cases with the Rules of the Road Technique. The article subheading is: “The facts may be on your client’s side, but facts alone won’t convince the jury in a medical malpractice case. Take the next step by appealing to jurors’ core values and principles and placing the facts in context.” Id. at 22.

The Verdicts & Settlements section of Trial also published a $750,000.00 settlement for “MEDICAL NEGLIGENCE,” captioned “Failure to Diagnose, Treat Teen’s Heart Failure”. A 17 year-old California victim suddenly died from congestive heart failure 6 days after being discharged from the local Emergency Room with a misdiagnosis of gastritis. Id. at 12.

The Court of Appeals of Virginia’s Opinion in Beshah v. Commonwealth, No. 2070-10-4 (Va. app. May 8, 2012) proves what Plaintiff medical malpractice lawyers have complained for decades: despite the criminality of it, healthcare providers in Virginia fabricate patient charts to cover their tracks! Beshah upheld the multiple forgery convictions of a licensed practical nurse (“LPN”) who made at least 50 documented false entries in the neglected patient’s records, plus offered “perjured testimony” at trial in her defense.

Defendant LPN in Beshah perpetrated her frauds while working at a Medicaid-certified skilled nursing home in Arlington. Id. at 2. “During [2-month FBI] surveillance, as shown on video, [the LPN] did not administer some medications as prescribed, but she recorded having administered those medications. [The LPN] also failed to perform nursing care she documented she had performed. [The LPN] recorded vital signs when she had not taken them, recorded turning and repositioning [the patient] when she had not done so, and recorded performing incontinence care when she had not. She fabricated entries in [the patient’s] medical records numerous times during the surveillance period.” Id. at 3.

The LPN’s “failure to accurately document was not an isolated event, but was a pattern of behavior to misrepresent that status of the patient’s treatment and medication.” Id. at 8. Beshah observed that the LPN’s misrepresentations were “potentially dangerous” to the patient crime victim, who was “high risk” as elderly, infirm, immobile, and demented. Id. at 2-4.

Although the LPN was the focus of the Beshah Opinion, a Grand Jury also indicted “a number of other employees of Potomac Center for crimes involving [the patient’s] care”! Id. at 4. One criminal defense lawyer represented 6 of the healthcare employees alone! Id.

Virginia Business magazine recently published its “Virginia Business List of Leaders” for 2012. Notably, it documents under “Hospitals” that the Hampton Roads health systems Mr. Waterman sues for medical malpractice vis-à-vis their patients actually are “big business” – financial goliaths making hundred of millions of dollars of patient revenues every year!

Three Hospitals of Sentara’s system alone have annual revenues from patients of roughly $1 billion! Sentara Norfolk General (www.sentara.com) was $612,513,000.00; Sentara Virginia Beach General (www.sentara.com), $258,786,000.00; and Sentara CarePlex in Hampton (www.sentara.com), $226,709,000.00.

Indeed, three Hospitals in Bon Secours’ system top $1 billion in patient revenues annually: Bon Secours St. Mary’s in Richmond (www.bonsecours.com), $445,973,000.00; Bon Secours Memorial Regional Medical Center in Mechanicsville (www.bonsecours.com), $292,712,000.00; and Bon Secours Maryview Medical Center in Portsmouth (www.bonsecourshamptonroads.com), $279,500,000.00. Obviously this does not count the substantial patient revenues of Mary Immaculate Hospital in Newport News and Bon Secours nursing homes on the Peninsula.

Riverside Regional Medical Center in Newport News (www.riversideonline.com) – against which Mr. Waterman has litigated multiple patient fall cases – itself has $352,879,000.00 of yearly patient revenues, making it the 12th largest patient revenue Hospital in Virginia. Of course, numerous other facilities and practices of Riverside make it a roughly half-billion-dollar system.

Other “top ten” highest-revenue Virginia Hospitals include: first-place Inova Fairfax (www.inova.org/ifh), $1,149,521,000.00; University of Virginia Medical Center in Charlottesville (www.uvahealth.com), $994,099,000.00; VCU Health System in Richmond (vcuhealth.org), $963,682,000.00; Carilion Medical Center in Roanoke (carilionclinic.org), $788,712,000.00; Chippenham Johnston Willis Medical Center in Richmond (cjwmedical.com), $572,067,000.00; Mary Washington in Fredericksburg (marywashingtonhealthcare.com), $514,356,000.00; Winchester Medical Center (valleyhealthlink.com), $462,921,000.00; and Henrico Doctors’ (henricodoctorshospital.com), $418,838,000.00. Chesapeake Regional Medical Center (www.chesapeakeregional.com) at $264,458,000.00 ranks 19th; Children’s Hospital of the King’s Daughters in Norfolk (www.chkd.org) at $257,603,000.00 ranks 21st.

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, formerly the American Trial Lawyers Association (“ATLA”), of which Mr. Waterman has been a member for decades. The cover of its April, 2012 issue headlines “DAMAGES: WORKING TOWARD MAKING YOUR CLIENTS WHOLE”.

The lead article is “Rethink Cross-Exams in Traumatic Brain Injury Cases”. Id. at 16-20. Its teaching coincides with Mr. Waterman’s experience in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Another article is “Illuminate Damages with a Video Settlement Brochure”. Id. at 26-29. Mr. Waterman recently used such a video to obtain a Virginia recording-setting settlement at mediation of a medical malpractice case.

“Dealing with Low Ceilings” is another Trial article. Id. at 30-34. Mr. Waterman faces such a damages “cap” – roughly $2,000,000.00 – in all Virginia medical malpractice cases.

“Recovery for Damaged Credit” is a fourth damages article. Id. at 22-25. It may be applicable in wrongful death as well as personal injury cases.

Galumbeck v. Lopez, No. 102416 (Va. Mar. 2, 2012) is a medical malpractice appeal. It rejected all 4 of the defendant doctor’s assignments of error.

First, Galumbeck found no juror misconduct despite a juror nodding to plaintiff, shaking the hand of his expert, and telling the expert “good job” re his testimony. Id. at 4. The Virginia Supreme Court observed that at the medical malpractice trial the juror “explained his actions and those explanations were found to be credible by the trial court”. Id. at 7.

Second, the medical malpractice defendant was deemed to have waived his objections about a surgical log not being admitted. Id. at 7-10. Galumbeck found an insufficient appellate record was made because: (1) “all of the relevant discussions related to this issue were held off the record in a sidebar conference”; and (2) “Dr. Galumbeck’s ‘proffer’ was recorded after the court had adjourned for the day and outside of the presence of opposing counsel”. Id. at 9.

Third, Galumbeck held the admissibility of board certification evidence also was waived on medical malpractice appeal. The grounds were (1) defendant not requesting a ruling on his pre-trial motion in limine; (2) his trial objection being made off-record in another sidebar conference; and (3) he himself introduced the same evidence as part of his own exhibit. Id. at 9-12.

Fourth, Galumbeck upheld the admissibility of medical bills despite plaintiff not claiming medical expenses as damages. At medical malpractice trial, the medical bills were “arguably relevant” because they only “were offered to contrast the level of emphasis Dr. Galumbeck placed on the financial aspect of the transaction with the quality of the medical care he delivered.” Id. at 12-13.

On March 20, 2012, Circuit Court for the City of Newport News, Virginia, entered a Scheduling Order in the medical malpractice suit of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15. Two-week jury trial on the merits is scheduled for November 26-December 7, 2012.

In the Burrell patient fall case, Riverside and its nurse allegedly failed to assess and to intervene properly for the patient being a high fall risk. Riverside already has lost in a similar medical malpractice suit, in which another Newport News jury awarded approximately $1,600,000.00 to a patient fall victim and the Virginia Supreme Court upheld that plaintiff verdict in a precedent-setting decision. Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

In Conger v. Barrett, 280 Va. 627 (2010), the Virginia Supreme Court vindicated Plaintiff’s right to reinstate her wrongful death suit within 1 year of its dismissal under Va. Code Ann. §8.01-335(B). The court rejected the defense assertion that Va. Code Ann. §8.01-244(B) two-year limitation for filing a new action barred reinstatement.

“Conger’s motion to reinstate her earlier case did not create ‘another action’ and therefore is not subject to the limitation period in Code §8.01-244(B),” wrote Justice Mims. Id. at 633. Accordingly, Conger reversed the trial Court’s dismissal of Plaintiff’s medical malpractice case. Id.

In the medical malpractice case of Mahone v. Sentara Hospitals, et al., No. CL10-1122 in Circuit Court for the City of Suffolk, Virginia, certain defendants filed Demurrer and Motion for Bill or Particulars while refusing to submit to discovery deposition. On March 6, 2012, Mr. Waterman filed Memoranda in Opposition.

Mahone alleges inter alia that the patient suffered wrongful death because of defendants failing to test, monitor, diagnose, consult, refer, transfer, treat and/or care for TTP. The aforesaid Motions are scheduled for hearing in Court on March 13, 2012.

During February 24-25, 2012, Mr. Waterman attended the “Reptile in Trial” Seminar in Raleigh, North Carolina. It featured noted jury consultant, David Ball, Ph.D.; and medical malpractice trial lawyer, Don Keenan, Esq.

Ball and Keenan authored Reptile: The 2009 Manual of the Plaintiff’s Revolution. Reptile also applies to vehicle accidents, product liability, premises liability, and other personal injury and wrongful death cases.

Landrum v. Chippenham and Johnston-Willis Hospitals., Inc., 282 Va. 346 (2011) is a medical malpractice case. Therein the Virginia Supreme Court held that the Circuit Court for the City of Richmond, Virginia did not abuse its discretion in excluding expert witnesses for not obeying pretrial orders. Id. at 349.

“Pursuant to Rule 4:12(b)(2), a trial court may sanction a party for failing ‘to obey an order or provide or permit discovery’.” Id. at 352. The Court in the Landrum medical malpractice appeal rejected that the judge disregarded Va. Sup. Ct. Rule 4:1(g) in treating the unsigned expert designation as a nullity, because Va. Sup. Ct. Rule 1(A):4(2) was violated by out-of-state pro hac vice counsel, but not local Virginia-licensed counsel, signing the pleading. Id. at 353-355.

Significantly, Landrum held that Rule 4:12(b)(2) does not require a judge to “determine whether a party’s failure to obey an order has caused another party to suffer prejudice before it may impose a sanction.” Id. at 355. The Court in the Landrum medical malpractice decision upheld the judge’s discretion to exclude experts where counsel not only violated the scheduling order by 2 months delay, but also failed to heed the judge’s warning to cure within 1 week or face sanctions. Id. at 355-356.

Finally, Landrum also is noteworthy for finding that the medical malpractice plaintiff had preserved his Rule 4:1(g) argument for appeal. The Virginia Supreme Court observed that even though plaintiff did not cite Rule 4:1(g) to the judge, by the argument alone the judge was given “sufficient ‘notice of due substance of the objection’ to comply with the requirements of Rule 5:25”. Id. at 353 n.7.

Toward evaluating a potential medical malpractice claim, pursuant to Va. Code Ann. §8.01-413(B) Mr. Waterman sought a patient’s “records or papers” from Maryview Nursing Care Center in Suffolk, Virginia. His request was made without any suit pending and included inter alia any so-called incident reports.

Through legal counsel on January 19, 2012, that Bon Secours nursing home provided 16 Quality Care Reports, but redacted from each of them everything under the general heading of “NATURE OF THE INCIDENT” – which constituted more than one-third the informational content of all 16 forms – ostensibly “to remove deliberative analysis” that supposedly was “privileged by Va. Code §8.01-587.17” as amended in 2011. Naturally Mr. Waterman objected to such obviously overbroad redactions.

On January 31, 2012, Maryview/Bon Secours belatedly provided all 16 Quality Care Reports unredacted. Significantly, the unredacted forms disclosed 10 subsections headed “BEHAVIORAL,” “BLOODY/BODY FLUID EXPOSURE,” “BURN,” “COMPLAINT,” “EQUIPMENT RELATED,” “FALL,” “IV/MEDICATION RELATED,” “PROPERTY LOSS/DAMAGE,” “SKIN INTEGRITY” and “TREATMENT/PROCEDURE RELATED” – the format of which was check-the-preprinted-boxes and reflected core facts pertinent inter alia to a patient fall at issue.

Citing Va. Code Ann. §8.01-296, Defendant Riverside doctors emphasize that Plaintiff did not attempt to serve them at their homes in the birth-related personal injury lawsuit for medical malpractice of Andre L. Gibbons, Jr., et al. v. Riverside OB/GYN and Family Care, et al., No. CL10-2326T-01 in Circuit Court for the City of Newport News, Virginia. Under §8.01-296, however, service at home is permissible, but not required.

§8.01-296 permits service anywhere. Personal service commonly is effected at defendants’ places of business, including through their agents there – for example, Dr. James M. Mullins, III was served with medical malpractice suit papers at his place of business on August 9, 1999, in Shannon S. Fernandez, et al. v. James M. Mullins, III, No. CL9927106H-02 in Newport News Circuit Court, without any objection.

Plaintiff’s experienced professional process servers actually served Defendant Riverside doctors in the Gibbons medical malpractice case through their respective agents who represented that they could accept service at their regular places of business on December 5 and 6, 2011, respectively; which should be good service of process within 1 year of filing. That is reflected in the Service Returns properly filed with the Court Clerk.

Even if arguendo service of Defendant Riverside doctors in the Gibbons medical malpractice action within 1 year of filing was not effective (which is denied), that should not be fatal under the circumstances at bar. Plaintiff again served Defendant Riverside doctors promptly after they filed defensive pleadings, which comes within the “due diligence” exception ignored by Defendants.

Va. Code Ann. §8.01-275.1 cited by Defendant Riverside doctors in the Gibbons medical malpractice lawsuit also mandates: “Service of process on a defendant more than twelve months after the suit or action was commenced shall be timely upon a finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.” (emphasis added). Likewise, Va. Code Ann. §8.01-277(B) cited by Riverside Defendant doctors provides:

Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of that ruling.

(emphasis added). To the same effect is Va. Sup. Ct. R. 3:5: “No order, judgment or decree shall be entered against a defendant who was served with process more than one year after the institution of the action against that defendant unless the court finds as a fact that plaintiff exercised due diligence to have timely service on that defendant.” (emphasis added).

Defendant Riverside doctors in the Gibbons medical malpractice suit assert that the Norfolk Circuit Court decision in Drewry v. Nottingham, 62 Va. Cir. 269 (Norfolk Mar. 22, 2004) is dispositive in their favor. But it is not. It is distinguishable on three (3) alternate grounds.

First, unlike Plaintiff in the Gibbons medical malpractice case, plaintiff in Drewry simply posted at the wrong home address for defendants. Second, unlike Plaintiff in Gibbons, plaintiff in Drewry never effected service on defendant. Third, unlike Plaintiff in Gibbons, plaintiff in Drewry made no showing of “due diligence”. Id. at 269-272.

Moreover, Drewry cited the Virginia Supreme Court for the following definition of “due diligence”: “such a measure of prudence, activity, or assiduity, as is properly to be expected from, and expected by, a reasonable and prudent man under the particular circumstances, not measured by any absolute standard, but depending on the relative facts of the special case.” Id. at 272 (quoting STB Marketing Corp. v. Zolfaghari, 240 Va. 140, 144 (1990))(emphasis added). Plaintiff in the Gibbons medical malpractice action exercised “due diligence” – was reasonably prudent – under STB. Plaintiff: (1) verified the places of business of Riverside Defendant doctors; (2) requested issuance of Summonses promptly after obtaining the prerequisite written expert certification under Va. Code Ann. 8.01-20.1; (3) promptly delivered the Summonses to a professional process server for service; and (4) understood and relied that process was served through doctors’ agents who advised they were authorized to accept such service.

Plaintiff in the Gibbons medical malpractice lawsuit is more closely akin Palum v. Quinn, 59 Va. Cir. 35 (Loudoun Mar. 18, 2002). In Palum, plaintiff attempted substituted service at what erroneously was believed to be defendant’s home address within 1 year of filing, which service was quashed; and then posted service at defendant’s actual home address 15 months after filing. Id. at 38. Finding that plaintiff in Palum “acted in good faith” and “had a reasonable belief,” Judge Chamblin found “due diligence” and denied the Motion to Dismiss. Id. at 39-40.

Judge Chamblin in Palum observed, “Since the trial court has the discretion to waive the rule [about serving within 1 year] where it finds the plaintiff to have behaved in good faith, the rule cannot be considered to be a jurisdictional rule; it is, rather, a administrative, quasi-penal one.” Id. at 39 (quoting W. Hamilton Bryson, Bryson on Virginia Civil Procedure (3d Edition) at 110). “While the definition of ‘due diligence’ approved in Dennis appears to impose upon a plaintiff a strong duty to accomplish timely service, I think that the duty needs to be considered in the relation to the reason for the rule and the statute.” Id. (emphasis added). Re the plaintiff in Palum like Plaintiff in the Gibbons medical malpractice suit having waited almost 1 year to attempt service, Judge Chamblin emphasized: “The law allows the Plaintiff the one-year window for service on defendant.” Id.

Judge Chamblin in Palum also emphasized, “The purpose of both [8.01-275.1 and the Virginia Supreme Court Rule] is to promote the timely prosecution of lawsuits and to avoid abuse of the judicial system.” Id. at 38. Plaintiff in the Gibbons medical malpractice case attempted “timely prosecution” and did not “abuse…the judicial system”. Conversely, the judicial system is subject to potential “abuse” when defendants disavow their office agent’s authority after they have accepted service right after 1 year has passed.

Flagler v. Liberty Mutual Ins. Co., 73 Va. Cir. 61 (Fairfax Mar. 9, 2007) and Goldstein v. Bourgad, 68 Va. Cir. 132 (Fairfax Jun. 7, 2005) also support Plaintiff in the Gibbons medical malpractice action. In Goldstein, the court found “due diligence” even though service within 1 year was defective because the Notice of Motion for Judgment was missing; where plaintiff re-served correctly within an extension of time after 1 year. In Flagler, plaintiff was granted an additional 2 months to serve, after failing to serve within the first 14 months; and subsequently was dismissed for still failing to serve at all.

The American Association for Justice (“AAJ”) posted TrialNews online this week. It featured a healthcare note bearing on medical malpractice.

“The Joint Commission [on Accreditation of Healthcare Organizations (“JCAHO”)] is urging hospitals to address the ongoing problem of health care worker fatigue as it relates to patient safety,” reported AAJ vis-à-vis potential medical malpractice. “In a recently issued ‘sentinel event alert,’ the predominant accrediting organization for U.S. hospitals suggested that administrators take specific actions, including conducting an assessment of staffing levels, shift schedules, and policies that may keep personnel from getting adequate rest.”

On November 23, 2011, Circuit Court for the City of Alexandria, Virginia, rejected defendant healthcare provider’s medical malpractice claim of privilege based on the 2011 Amendment of Va. Code Ann. §8.01-581.17, and ordered the hospital to produce its so-called “incident report”. The pivotal case is Mary Hamill v. INOVA Alexandria Hospital, No. CL-10004231.

Significantly, the healthcare provider in Hamill v. INOVA introduced testimony that the patient’s nurse “reported the incident electronically to Inova Alexandria Hospital’s quality department,” with the purpose ostensibly being “to initiate a peer review of the incident to determine if measures should be taken to improve the quality of care”. Defendant’s Memorandum at 3. INOVA unsuccessfully asserted by deposition that the medical malpractice incident report “automatically goes to Quality,” with the quality department doing a “post-event assessment”. Id. at 6.

Plaintiff patient in Hamill v. INOVA successfully relied chiefly on Mr. Waterman’s landmark medical malpractice appeal, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006). Therein the Virginia Supreme Court upheld the discoverability and the admissibility of incident reports, rejecting that a healthcare provider routing facts about patient care through a covered committee created privilege. Id. at 532.

Hamill v. INOVA undercuts the medical malpractice defense viewpoint by W. Scott Johnson, Esq. of Hancock, Daniel, Johnson & Nagle, P.C. in his article “2011 General Assembly Amendments to Va. Code §8.01-581.17: Quality Assurance and Peer Review Protection,” Virginia Lawyer, Vol. 60 (Dec. 2011). Plaintiff counsel are invited to contact Mr. Waterman for a copy of the 11/23/11 Order in Hamill v. INOVA.

The December 2011 issue of Hampton Roads Magazine names Mr. Waterman to The Annual List of Super Lawyers, “The Top Attorneys in Hampton Roads”. He is 1 of only 7 Hampton Roads lawyers recognized for “PERSONAL INJURY PLAINTIFF: MEDICAL MALPRACTICE,” Id. at S-7 and S-9; and has been listed as such since the recognition was created for Hampton Roads.

“Super Lawyers uses a [multi-step evaluation and rigorous selection process, including] a system of nominations, peer evaluation and internal research, which acts as a system of checks and balances,” reports Hampton Roads Magazine. “You can find a detailed description of the selection process at www.superlawyers.com.” Id. at S-1.

Mr. Waterman also has been listed by Super Lawyers in the same practice area of medical malpractice for the entire Commonwealth of Virginia since 2009. He also regularly handles vehicle accident and other personal injury cases.

On October 27, 2011, Mr. Waterman refiled a medical malpractice suit in Circuit Court for the City of Newport News, Virginia, captioned Shirley Frazier Burrell v. Riverside Hospital Inc. and Nurse M. Ames. The original suit was in the now – widowed patient’s then – married name, Shirley Frazier Shakshober v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL0800296P-03.

Burrell/Shakshober is a patient fall case against Riverside and its nurse, alleging their failure to assess and to intervene properly for the patient as a known high fall risk. Despite the patient admittedly suffering from intermittent confusion, having a mobility problem, being under the influence of mind-altering narcotics, being elderly, being very anxious, and even constantly trying to get out of bed; Riverside and its nurse did not activate the patient’s bed alarm system or use any physical restraints before the patient fell (even though Riverside and its nurse did restrain the patient after she fell.

Mr. Waterman previously sued Riverside in Newport News Circuit Court in another patient fall case, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP. Mr. Waterman obtained a $1,600,000.00 jury verdict against Riverside in Johnson in 2005, which was upheld on appeal by the Virginia Supreme Court in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

In the pending Burrell/Shakshober medical malpractice lawsuit, a UVA neuroradiologist, a MCV anesthesiologist, a Harvard neurologist, a Rothman Institute orhopaedic surgeon, the patient’s own orthopaedic surgeon, a Virginia nursing expert, and a national nursing expert are slated to testify against Riverside and its nurse on the standard of care and/or the causation of the permanent debilitating neurological injuries suffered by the patient fall victim. Jury trial on the merits is expected to be rescheduled for 2012.

On October 12, 2011, Plaintiff, Shirley Frazier Burrell, non-suited Shirley Frazier Shakshober v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL08-296 in the Circuit Court for the City of Newport News, Virginia. That was a medical malpractice lawsuit previously filed under her married name.

Va. Code Ann. §8.01-380 and Virginia Supreme Court jurisprudence provides that civil litigants can non-suit their case and then refile it within 6 months. Mr. Waterman will refile this patient fall cause for Ms. Burrell against Riverside and Nurse Melanie Ames within 30 days and promptly seek a 2-week jury trial in Newport News in 2012.

On October 6, 2011, Defendants filed Motions in Limine and Memorandum in Support in Shirley Frazier Shakshober v. Riverside Hospital, Inc., et al., No. CL08-296 in Circuit Court for he City of Newport News, Virginia, toward keeping from the jury twelve (12) points of evidence at trial. Since filing that patient fall lawsuit, Plaintiff has resumed her pre-marital name, Shirley Frazier Burrell.

1. Riverside Defendants seek to preclude evidence of other lawsuits, claims, and verdicts against Riverside. Riverside has been sued for medical malpractice on multiple occasions by Plaintiff’s lawyer (not to mention even more by numerous other attorneys), including particularly for another serious patient fall case that resulted in a roughly $1,670,000.00 verdict for that victim in 2005, which was upheld by the Virginia Supreme Court in 2006, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006).

2. Riverside Defendants seek to preclude evidence of other patient falls at Riverside. For example, Riverside’s computer database in Riverside Hospital, Inc. v. Johnson indicates that literally hundreds of in-patients fall annually at Riverside Regional Medical Center alone, and that roughly 10% of those result in serious brain or other personal injury.

3. Riverside Defendants seek to preclude evidence its so-called Committee Meeting Minutes for Plaintiff’s patient fall. In addition to various so-called “incident reports” and like documents, Riverside kept minutes of its committee meeting about Plaintiff and her fall, some of which after evidentiary hearing the Court already ruled were not privileged from disclosure.

4. Riverside Defendants seek to preclude evidence of what was taught by nursing faculty to nursing students at Riverside School of Professional Nursing and at Riverside School of Practical Nursing in 2006 before, at, and after the patient fall of Plaintiff. Textbooks, syllabi, videotapes, handouts and/or other course materials of Riverside actually support what Plaintiff and her nursing expert state was the prevailing nursing standard of care in Virginia vis-à-vis fall risk assessment and fall risk intervention at the time of Plaintiff falling and being injured.

5. Riverside Defendants seek to preclude evidence of Riverside’s internal training and orientation materials about patient falls. The fact is that Riverside’s Orientation program, staff development instruction, in-services, and “computer based learning” (“CBL”) materials required for Riverside’s nurses in 2006 actually support what Plaintiff and her nursing expert state is the prevailing nursing standard of care in Virginia vis-à-vis fall risk assessment and fall risk intervention at the time of Plaintiff falling and being injured.

6. Riverside Defendants seek to preclude evidence related to complaints about nursing staffing, nursing shortages or like nursing deficiencies, such as about nurse-to-patient ratios. In particular, they seek to exclude from jury consideration in this medical malpractice case a prior complaint of another patient.

7. Riverside Defendants seek to preclude evidence regarding “causation” by Plaintiff’s standard of care nursing expert. Plaintiff’s expert nurse testified how Defendants giving the patient the narcotic Dilaudid shortly before her patient fall contributed to the patient falling by causing disorientation and confusion; plus Defendants also gave the patient Ambien the evening before.

8. Riverside Defendants seek to preclude from evidence Plaintiff’s orthopaedic surgeon providing causation opinions that are very favorable to her. Specifically, they want to exclude from jury consideration her orthopaedic surgery expert testifying that the repair surgery under general anesthesia necessitated by the patient fall aggravated her neurological condition and increased her neurological deficit.

9. Riverside Defendants seek to preclude from evidence Plaintiff’s anesthesia expert providing causation opinions that are very favorable to her. Specifically, they want to exclude from jury consideration her anesthesia expert testifying the patient suffered a stroke during the repair surgery under general anesthesia that she had to undergo because of the patient fall.

10. Riverside Defendants seek to preclude from evidence Plaintiff introducing testimony by their own nursing standard of care expert about whether physical restraints appropriately were used on her after the patient fall. One of Defendants’ nursing experts already has opined that it was appropriate for Defendants to use a posey vest on the patient after, but not before, she fell.

11. Riverside Defendants seek to preclude from evidence the fact that Defendant Nurse Ames and other healthcare providers of Plaintiff left the employment of Riverside at various points after the patient fall. Instead, they prefer jury expectation, assumption and/or speculation that all of the individual nurses and other healthcare providers of the patient still are (longtime) employees of Riverside.

12. Riverside Defendants seek to preclude from evidence a pharmacy medication issue involving Plaintiff while she was an in-patient of Riverside during 2000. Specifically, although Riverside destroyed all of her patient chart for that 2000 admission, an “incident report” survived and was discovered by Plaintiff after her patient fall in 2006.

Like the rest of America, Virginia is exploding with “social media” – from YouTube to Facebook to Myspace to Twitter to LinkedIn to Lester v. Alliance Concrete to you-name-it! Most of the younger generation and increasing numbers of the older generation are expressing themselves online – including after being victims of car accidents, medical malpractice, assault and battery, and other personal injury.

In the 2010 brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, which now is on appeal before the Virginia Supreme Court, Nos. 110754 and 110767; social media was a would-be cornerstone of the defense. Defendants introduced into evidence various printouts they claimed were threatening profane communications and image posting of Plaintiff on Myspace.com.

Ultimately, the jury was not persuaded by the social media claimed in Gagnon. But like some other personal injury and wrongful death victims, Plaintiff was put to substantial expense and risk in proving that he was not responsible for the supposed Myspace.com materials.

Extensive expert computer forensics costing Plaintiff over $10,000.00 were required to show that the supposed Myspace communications and image posting of the brain injury Plaintiff actually were created by others. Fortunately for Plaintiff in Gagnon (but unfortunately for plaintiffs in other personal injury and wrongful death cases), social media messages and postings leave trails of evidence on hard-drives that usually are recoverable.

It always is important to be very careful about use of social media, particularly when one is victim of car accident, medical malpractice, other personal injury, or wrongful death. But as in Gagnon, it also may be important for victims to preserve and analyze hard-drives.

Social media burst onto the radar of most lawyers in 2011 with repeated headline news coverage of a notorious truck accident case, Lester v. Allied Concrete. But Mr. Waterman has been wrangling with it for years.

In a confidential 2009 Williamsburg special case in Court, a party printed the other party’s Facebook photographs, surprised the opposition on cross-examination, and introduced them as key evidence. Since that social media irrefutably showed excessive drinking and apparent neglect, it carried the day.

Social media usually is intended for family and friends. But victims of car accidents, medical malpractice, other personal injury, and wrongful death seriously need to think twice and even thrice about what is posted by them innocently falling into enemy hands unwittingly.

Most victims of vehicle accidents and medical malpractice are unaware that anything posted may be held against them in Court. But defendants, defense lawyers, insurance companies, claim representatives, risk managers and other opponents now are very savvy to this and routinely search for, save, and download potentially incriminating information that is on social media.

All victims of personal injury or wrongful death immediately should consider privatizing all social media, scrutinizing all existing posts for content, and limiting all future posts. Of course, such prudence may be superseded by pending discovery requests, court orders, etc.

On September 13, 2011, Mr. Waterman settled without having to file suit a medical malpractice claim against a Wal-Mart Pharmacy in Williamsburg, Virginia. It was a clear case of liability for the pharmacist dispensing 10 times the strength of a medication prescribed by a neurologist in Newport News, Virginia.

The over-medication immediately caused serious adverse effects on the patient from Williamsburg, Virginia, who had to miss work for a week. Fortunately, like most mis-prescription cases of medical malpractice, this one caused no permanent disability.

Cabiness v. Medical Facilities of Am. VIII (8), L.P., 80 Va. Cir. 425 (Danville Jun. 21, 2010) is a medical malpractice action. It overruled the Demurrer to plaintiff’s claim for punitive damages.

Cabiness found that the First Amended Complaint set forth sufficient facts supporting “willful and wanton negligence”. Id. at 433. Based on plaintiff’s pleading of medical malpractice, “a reasonable jury could conclude that the defendants were actually aware, from their knowledge of existing circumstances and conditions, that their contact probably would cause some injury to another and that despite such actual knowledge, they consciously disregarded the probably harm to the plaintiff.” Id.

Gibson v. Medical Facilities of America, Inc., 80 Va. Cir. 56 (Norfolk Jan. 22, 2010) is a medical malpractice case. It resolved issues of venue and an arbitration clause in favor of the nursing home resident, a victim of sexual molestation.

First, Gibson held there was permissive venue based on Medical Facilities of America (“MFA”) regularly conducting substantial business in Norfolk. It sufficed that MFA was sole general partner in the limited liability partnership that owned a healthcare facility in Norfolk, despite the alleged medical malpractice being committed at another facility in Chesapeake. Id. at 58.

Second, Gibson held: “The Court has discretion in determining whether the defendant has demonstrated good cause to transfer, and the plaintiff’s forum selection should be given favor.” Id. The requisite “good cause” for transferring the case to Chesapeake (where the medical malpractice occurred) was not shown because there was “no demonstration of substantial inconvenience to the parties or witnesses” by the case being in Norfolk. Id. at 59.

Third, Gibson held another defendant was not entitled to transfer venue of the medical malpractice case, despite not having any personal connection to Norfolk. “Venue is proper to all defendants if it is proper to one defendant.” Id.

Fourth, Gibson denied MFA’s motion to compel arbitration of the medical malpractice claim. “When the plaintiff brings an action in tort rather than contract, asserts no claim under the contract, and does not require the existence of the contract to proceed, the arbitration provision of the contract is not applicable to the controversy.” Id. at 63.

Kudos to the Honorable Ronald E. Wilson, Judge of the 1st Judicial Circuit, sitting as temporary Justice on the Supreme Court of Appeals of West Virginia! On July 21, 2011, he authored a most courageous cogent dissent in the medical malpractice case of MacDonald v. City Hospital, Inc., No. 35543.

Judge/Justice Wilson in MacDonald wrote a no-holds-barred dissenting opinion that exposed medical malpractice “cap” legislation for exactly what it is. He also appropriately challenged the state’s highest court to uphold its judicial responsibility and declare the statute unconstitutional on multiple grounds.

There has been some suggestion that his brilliant dissent may prompt West Virginia’s Supreme Court to reconsider the constitutionality. Better yet, perhaps the MacDonald medical malpractice appeal will be taken to the United States Supreme Court!

In Lagumen v. Richardson, 80 Va. Cir. 51 (Chesapeake Jan. 21, 2010), Chesapeake Circuit Court adjudicated the degree of certainty or probability required for a medical expert opinion to be admissible. In that medical malpractice case, the treating physician equated the legal touchstone of “reasonable degree of medical certainty” with being “more likely than not”. Id.

Lagumen cited Graham v. Cook, 278 Va. 233, 246 (2009)(medical malpractice)(“fifty-one percent”); Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 535-536 (1995)(medical malpractice)(“into the realm of reasonable probability”); Hoffman v. Carter, 50 Va. App. 199, 215 (2007)(workers’ compensation)(“equivalent to the preponderance of the evidence standard”); Black’s Law Dictionary at 1273 (8th ed. 2004)(“more likely than not”); and various out-of-state cases and journals. Id. at 52-55. It upheld the admissibility of the doctor opining “more likely than not”.

In Lents v. Vetter, 80 Va. Cir. 268 (Fairfax Apr. 2, 2010); Fairfax County Circuit Court applied Va. Code Ann. §8.01-20.1 in a medical malpractice action. Section 8.01-20.1 requires plaintiffs to have medical expert certification of a prima facie case before requesting service of process.

In Lents, defendant answered the pending medical malpractice complaint voluntarily without plaintiff ever having requested service. Holding that “Section 8.01-20.1 is in derogation of the common law and should be strictly construed,” the court found that by voluntarily answering defendant had waived service of process and thereby could not demand expert certification. Id. at 270-271.

House Bill 1605 passed during the General Assembly’s 2011 Session, and became effective July 1, 2011. It made fraudulent falsification of patient records a class 1 versus a class 3 misdemeanor; but does not alter any commonlaw jurisprudence about fraudulent falsification in civil medical malpractice cases.

Notably, House Bill 1605 also added an “intent to fraud” requirement to the criminal offense; so although now criminal penalties are stiffer, threshold criminal liability is more difficult to prove. But in a medical malpractice case, plaintiff still need only prove falsification by the traditional preponderance of the evidence standard.

In Addison v. Jurgelsky, No. 092361 (Jan. 13, 2011), the Virginia Supreme Court reversed dismissal of a medical malpractice action. It held that a single co-administrator acting alone as Plaintiff could file, but not maintain, suit under Virginia’s Wrongful Death Act, Va. Code Ann. §8.01-50, et seq. Id. at 3-5.

Justice Mims in Addison continued that the initial filing by the one co-administrator tolled the statute of limitation for the wrongful death claim in Tazewell County, Virginia; and that it was permissible to join the other co-administrator as Plaintiff after the statute of limitation had run. Hence it was error to grant the motion to abate for nonjoinder and the plea of the statute of limitations. Id. at 9.

In Chalifoux v. Radiology Assocs. of Richmond, Inc., No. 100052 (Apr. 21, 2011), the Virginia Supreme Court applied the “continuing treatment rule” in a medical malpractice case. It reversed the trial court finding upon evidentiary plea hearing that Defendant’s serial comparative diagnostic imagings of Plaintiff’s brain were “single, isolated acts,” were episodic care” versus a “care continuum”. Id. at 5,16.

The Virginia Supreme Court looked to Arkansas, Connecticut and especially Missouri precedent in applying the rule to radiologists in Chalifoux. Id. at 12-15. On the facts of this medical malpractice action, it found the requisite “continuous and substantially uninterrupted course of treatment;” and remanded. Id. at 16.

The recent letter opinion in Hairston v. Eliacin of Honorable David A. Melesco, Judge for Circuit Court of Danville, Franklin County and Pittsylvania County, Virginia, reaffirms the continuing vitality of Mr. Waterman’s landmark medical malpractice case, Riverside Hosp., Inv. v. Johnson, 272 Va. 518 (2006), and its progeny. The Virginia Supreme Court in Riverside and numerous circuit courts subsequently pronounce that “factual information of patient care” is not privileged under Va. Code Ann. §8.01-581.17 and, concomitantly, uphold the discoverabililty and even admissibility of facts contained in incident reports, electronic databases, and other materials of peer review and other quality care committees.

Distraught over the transparency ushered by Riverside and its progeny, medical malpractice defense interests spearheaded the Virginia General Assembly’s passage of a compromise amendment to §8.01-581.17 in its 2011 Session. That becomes effective on July 1, 2011.

Significantly, however, Judge Melesco in Hairston opined that all of the patient care factual information in a medical center’s Peer Review and Quality Control Committee (“PR&QCC”) document was not privileged under Riverside or the new §8.01-581.17 amendment. Interestingly, the medical center in the Hairston medical malpractice case unsuccessfully attempted to use a self-serving Affidavit of its PR&QCC head to float its privilege claim; and the medical center moved to quash plaintiff’s witness subpoena for its “most knowledgeable person” on the topic, plus its counsel of record even refused to answer any questions about how the patient’s factual information came to be parked in its PR&QCC document.

Medical malpractice defense counsel have sought to rely on Muhammad v. Commonwealth, 269 Va. 451, 518-519 (2005), the so-called “Capital beltway sniper” case, as authority for introducing self-serving videotape or computer “simulations” created for their own civil cases. But Muhammad obviously is a singular criminal prosecution for 16 serial murders, which in 6 years never has been followed or even cited for the proposition raised by defendants.

In addition to Muhammad being a truly extraordinary case, its opinion discloses at least two distinctions. First, the Muhammad videotape simulation was predicated on independent eyewitness testimony of what occurred; while in most medical malpractice cases, defendants’ simulation less reliably (more biasedly) will be attested by defendants themselves and/or their experts.

Second, in Muhammad the jury got to scrutinize the real thing first hand “by an actual inspection of the trunk,” not simply to see the videotape stimulation. Conversely, in most medical malpractice cases, the jury will not get an actual corroborating inspection of plaintiff’s body, condition and/or process; and instead only will have the defense’s vivid unilateral re-creation imprinted in their psyche.

Besides those significant legal distinctions between the two cases, realistically most defendants cannot duplicate plaintiffs’ idiosyncratic physical conditions medically as of the pertinent times. Hence courts summarily should exclude defense videotape simulations as was done in the medical malpractice suit of Norman v. Williams, No. CL07-4554 (Norfolk May 19, 2009), despite the defense offering to redact video and to abandon audio in unsuccessful last-ditch attempts to salvage simulation.

Finally, less than 2 months after handing down Muhammad, the Virginia Supreme Court found the trial court’s allowance of a defense videotape in a medical malpractice case to be erroneous. Holley v. Pambianco, 270 Va. 180, 185-186 (2005). Thus, despite Muhammad, videotape evidence remains a “hot button” topic in Virginia, the admission of which may constitute reversible error.

Mr. Waterman settled a medical malpractice matter for $1,000,000.00. Additional case details are confidential.

The 2009 landmark Virginia Supreme Court decision of Wynn v. Commonwealth, 277 Va. 92 (2009), severely limited the testimony of expert witnesses who rely on hearsay, particularly facts and opinions from other non-testifying experts. §8.01-401.1 does not allow “the introduction of otherwise inadmissible hearsay evidence during the direct examination of an expert witness merely because the expert relied on the hearsay information in formulating an opinion.” Id. at 100. “The Commonwealth, however, asserts that our holding in McMunn should be limited to ‘hearsay matters of opinion’ upon which an expert relied. We do not agree whether an expert relies upon the opinion of others or allegations of sexual misconduct in formulating an opinion, both constitute hearsay. [T]he trier of fact cannot observe the demeanor of the speaker and the statements cannot be tested by cross-examination. Id. (emphasis added). The trial court properly excluded hearsay facts, in addition to hearsay opinions, of non-testifying experts. Id. at 101 (citations omitted). See, Exhibit 5(attached). “In Wynn, this Court specifically rejected the argument that the details of adjudicated allegations of sexual misconduct offered by an expert on direct examination, supposedly to show the factual basis of an expert’s opinion, are not hearsay.” Lawrence v. Commonwealth, 279 Va. 490, 497 (2010).

In 2007, the Virginia Supreme Court pronounced that application of its Rule 4:1(b)(4)(A)(i) “begins with determining whether the opinion at issue was disclosed in any form.” John Crane, Inc. v. Jones, 274 Va. 581, 591 (2007). “Furthermore, a party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert. Such a rule would impermissibly alter a party’s burden to disclose and impose an affirmative burden on the non-disclosing party to ascertain the substance of the experts testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).” Id. at 592 (emphasis added). “Rule 4:1(b)(4)(A)(i) requires that the substance of opinions to be rendered be disclosed. Here, while Crane did disclose the topic of Buccigross’ testimony, Crane did not disclose the substance of Buccigross’ opinions in the disclosure or through Buccigross’ report. Crane thus failed to comply with the Rule.” Id. at 593 (emphasis added). John Crane upheld two defense experts’ opinions being excluded by Newport News Circuit Court, where their substance was not disclosed and their reports were not provided.

Va. Code Ann. §8.01-379.1 guarantees Plaintiff the right to plead and argue his pleaded ad damnum to the jury. The weight of Circuit Court jurisprudence, especially more recent cases, support Plaintiff not having to reduce his ad damnum in a medical malpractice case. See, e.g., Wright v. Eli Lilly & Co., 65 Va. Cir. 484, 499-504 (Portsmouth Sep. 21, 2004)(attached)(Davis, J.)(citing Morris v. Commonwealth, 46 Va. Cir 216, 223 ( Albemarle Jul. 17, 1998)(Peatross, J.); Benson v. Lowe, 44 Va. Cir. 85, 86-87 (Norfolk Nov. 25, 1997)(Jacobson, J.); Bennett v. Riverside, 43 Va. Cir. 13, 14 (Newport News Mar. 17, 1997)(Frank, J.); Dell v. French, 38 Va. Cir. 91, 100 (Fairfax Aug 2, 1995)(Roush, J.); Johnson v. Commonwealth, 51 Va. Cir. 311, 318 (Stafford Feb. 9, 2000)(Haley, J.); and see, Amended Judgment, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Nov. 30, 2005)(attached).

Actually, the medical malpractice opinion of the Virginia Supreme Court upholding the constitutionality of Va. Code Ann. §8.01-581.15 in 1989 suggests that ad damnum should not be reduced prior to trial. Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96 (1989)(italics in original)(underlining added) (citations omitted). This Etheridge language was reiterated in Supinger v. Stakes, 255 Va. 198, 205 (1998).

As recent Virginia Supreme Court case pronounced “a medical doctor is qualified to give expert testimony about the cause of human physical injury.” Hollingsworth v. Norfolk So. Ry. Co., 279 Va. 360, 364 (2010)(emphasis added). “Code §8.01-581.20 addresses only the qualifications of experts to testify on the standard of care and whether the standard of care is breached in a medical malpractice case. The requirements do not address whether an expert witness is qualified to testify on proximate causation.” Therefore, the trial court abused its discretion by holding that Dr. Corkill was not qualified to testify on proximate causation…” Lloyd v. Kime, 275 Va. 98, 112 (2008)(citation omitted)(emphasis added).

“[B]y the great weight of authority, a physician or surgeon is not incompetent to testify as an expert merely because he is not a specialist in the particular branch of his profession involved in the case; although this fact may be considered as affecting the weight of his testimony.” Butler v. Greenwood, 180 Va. 456, 462 (1942)(emphasis added)(“orthopedic surgeon of Richmond, Virginia, was permitted to answer a hypothetical question touching the brain condition of Mr. Greenwood,” who “was under the care of another doctor”).

“[T]he fact that Dr. Rodman [a ‘family’ physician’ treating some patients with heart ailments,] is not a cardiologist’ or cardiothoracic surgeon does not prevent him from giving an expert opinion on this issue [whether the vehicle collision caused the heart attack]. The fact that Dr. Redman may not be a member of one of these specialties only goes to the weight which the trier of fact may place on his testimony.” Thomas v. Builders Transp., Inc., 28 Va. Cir. 93, 95 (Amherst Apr. 3, 1992)(emphasis added).

Defendant in another medical malpractice case “argues that since Dr. Hall is a general surgeon and is not a radiologist or a pathologist, his opinion [that Defendant’s ‘negligence was a proximate cause of Burke’s death’] rested on mere conjecture and improperly was based on subjects on which he was not qualified to offer an expert opinion. We disagree.” Lo v. Burke, 249 Va. 311, 318 (1995) (emphasis added). “In reaching this conclusion, we reject Dr. Lo’s argument that Dr. Hall improperly was allowed to offer opinion testimony on subjects involving radiology and pathology. Dr. Hall testified that while he is not qualified to examine pathology slides or read radiography films, the duties of a general surgeon include the review of reports of all the medical specialists involved in a case. * * * Therefore, we conclude that Dr. Hall’s evaluation of pathology and radiology reports in formulating his expert opinion did not constitute improper opinion testimony.” Id. (emphasis added).

“Dr. Zimmerman testified that he regularly reviews CT scans, X-ray films, and other tests in evaluating tissue samples for the presence of disease. He explained that, although he has not had formal training in radiology and does not consider himself an expert in that field, he is able to read and interpret CT scans. Dr. Zimmerman further stated that, if he is unable to read a CT scan, he consults with a radiologist. However, he testified that he was able to read and interpret the CT scans of King’s eye without requesting a radiologist’s opinion. Dr. Zimmerman also indicated that, as a pathologist, he is familiar with the cellular manifestations that are characteristic of Sjogren’s syndrome.” King v. Sowers, 252 Va. 71, 78 (1996)(emphasis added). We conclude that the trial court did not err in permitting Dr. Zimmerman’s testimony on these issues, since the evidence showed that he regularly evaluated CT scans in his pathology practice, and that he has skills and experience in recognizing Sjogren’s syndrome. The fact that Dr. Zimmerman did not qualify as an expert in radiology or rheumatology is relevant only to the weight to be given his testimony by the trier of fact.” Id. (citation omitted)(emphasis added).

The Virginia Supreme Court construes Va. Code Ann. §8.01-401.1 strictly, as it is a statute in derogation of the common law against admission of hearsay:

In enacting the 1994 amendments to Code §8.01-401.1, the General Assembly was clearly aware of those dangers and sought to avoid them by inserting two preconditions to the admission of hearsay expert opinions as substantive evidence of direct examination. First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises….

See, Bostic v. About Women OB/GYN, P.C., 275 Va. 567, 576 (2008)(emphasis added)(attached). The Virginia Supreme Court in its Bostic medical malpractice opinion emphasized that “relied upon” means “in forming his opinion,” not “to talk to this jury”:

The statutory standard is not met by an expert’s testimony that he relied upon it only to use ‘to talk to this jury,’ as the testifying witness did in the present case. The statutory term means that the witness must testify that he relied on the article in forming his opinion, which is consistent with the views expressed by the absent author.

Id. at 577 (emphasis added). Bostic follows another medical malpractice decision, May v. Caruso, 264 Va. 358, 361 (2002)(emphasis added), which also speaks in terms of “relied upon” to reach opinion in advance of trial, not just at it: “In that motion [in limine, which was granted and upheld on appeal], he asserted that the executor had failed to identify, as required by Code §8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his opinion….”

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Reliance " »

A Plaintiff once provided Defendants the precise “statements” and citations of his reliable authority more than 30 days before trial in a medical malpractice case. Also, more than 30 days before trial, he gratuitously provided them the full pages of the textbooks and articles in which each of those “statements” appeared.

Va. Code Ann. §8.01-401.1 does not even mention the word “article,” though Defendants still claimed it must be provided. §8.01-401.1 only requires that the discrete specific “statements” relied by a party upon be provided in a medical malpractice suit.

In the medical malpractice trial of May v. Caruso, 264 Va. 358, 361 (2002) (emphasis added), the only authority cited by Defendants, the party “failed to identify, as required by Code 8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his expert opinion.” May simply upheld exclusion for the party failing “to adequately identify the statements,” id. at 363 (emphasis added); it did not hold that the only way to identify statements is to underline/highlight them in an article.

Five years after May, another medical malpractice decision, Budd v. Punyanitya, 273 Va. 583, 588 (2007) (emphasis added), observed that underlining or highlighting is not the only way to adequately identify “statements”. “Budd conceded that he did not provide counsel for Dr. Punyanita with copies of the designated article or otherwise indicate the statement…” Id.

In Healy v. Shegog, No. 00-1249 (Hampton August 2004) (Lerner, J.) and Johnson v. Riverside Hosp., Inc., No. CL002963B-DP c/w No. CL01-30571-DP (Newport News March 2005) (Pugh, J.), Mr. Waterman adequately identified the “statements” simply by providing defendants the typed “statements” with citations. Plaintiffs did not even provide the pages on which the “statements” appeared in those medical malpractice actions, let alone textbooks or articles.

In the medical malpractice case of Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Mar. 7, 2005)(Pugh, J.), defense counsel unsuccessfully objected to Mr. Waterman subpoenaing the corporate Defendant as a trial witness to testify through its most knowledgeable representatives designated by it in discovery. See¸ 3/7/05 Johnson v. Riverside, Final Pre-Trial Order at 2 and 5 (“Plaintiff is entitled to call Defendant through its previously identified Rule 4:5(b)(6) designated representatives” and even new “testimony…outside the scope of the new corporate designation is taken under advisement,” and subsequently was granted at trial). In Johnson, Plaintiff’s first several trial witnesses were Defendant, Riverside Hospital, testifying through its personnel.

“A litigants’ attendance upon the trial may be compelled by the issuance and service upon him of a subpoena …, as is the case with any other witness.” Robertson v. Commonwealth, 181 Va. 520, 532 (1943). Va. Code Ann. §8.01-407. Of course, common sense dictates it must be so that Plaintiff can subpoena the corporate Defendant to testify at trial; otherwise, Plaintiff would be precluded from calling the corporate Defendant in person to testify ore tenus, and instead would be limited to only a deposition.

Court hearing in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Town of Poquoson, Virginia, showed there is no dispute that: (1) Defendants never charged Plaintiff anything for the 10/5/06 repair surgery, despite charging him for the other 4 surgeries before and after it [“No-Charge”]; and (2) Defendants wrote off as “bad debt” $1,963.53 of bills for the other 4 surgeries [Write-offs”]. That information comes from Defendants’ office computer and is summarized by Plaintiff. See, Defendants’ Charges/No Charges/Write-offs Composite.

First, Defendants’ counsel previously represented to the Court at prior hearing in Marshall that the 10/5/06 no-charge supposedly was “bundling of services” by Defendants, despite none of the other 4 surgeries having been “bundled” with one another. Moreover, the corporate Defendants’ designated representative, Ms. Schwartzlow, had testified she conferred with and received authorization from Dr. Moniz about Write-Offs, prior to any medical malpractice suit being filed. See, Williamsburg Surgery (by Schwartzlow) Deposition at 63-66.

Second, the two cases cited by Defendants are distinguishable on their facts. Both involve “offers” of compromise or remedial assistance in cases not involving medical malpractice. See, Lewis v. Kim, 46 Va. Cir. 227 (Alexandria Jul. 22, 1998) and Novick v. Dillon, 44 Va. Cir. 111 (Richmond Nov. 24, 1997); But in Marshall, the Write-Offs were unilateral conduct by Defendants.

Third, contrary to Defendants’ representation in Marshall, Richmond Circuit Court actually upholds the admissibility of write-offs, where as here, they are unilateral by Defendants versus “offers” to Plaintiff. In another medical malpractice action of Mr. Waterman, Schuster v. Posner, No. LA-134-3 (Richmond Mar. 24, 1997), Judge Markow ruled that Defendants’ medical bill write-off was admissible against interest, that Defendants were free to try explaining it away, and that “it’s up to the jury to decide who to believe”. See, 3/24/97 Schuster v. Posner Transcript at 75. 11-96.20.

Fourth, the day before hearing in Marshall Defendants inconsistently filed to admit their Write-Offs in evidence to reduce Plaintiff’s medical bills at their medical malpractice trial beginning on March 28, 2011. See, Defendants’ Memorandum in Opposition to Plaintiff’s Second Motion in Limine regarding Write-Offs. But it is hornbook law that Defendants cannot approbate and reprobate.

On March 24, 2011, various pre-trial motions again were heard in Circuit Court for York County and the Town of Poquoson, Virginia, in the medical malpractice suit of Marshall v. Moniz, No. CL08-2018. The case goes to jury trial at the Yorktown Courthouse during March 28-April 7, 2011.

The Marshall Court denied Defendants’ Motion to Strike Claim based on Surgery for Lack of Causation. Defendants wanted to keep from the jury evidence supporting the medical malpractice allegation that in the face of patient complaints Defendants delayed in seeing and operating on Plaintiff; but the Court ruled Plaintiff was entitled to present that evidence.

The Court in Marshall also denied Defendants’ Motion to Quash Rule 4:5(b)(6) Trial Subpoena of Williamsburg Surgery, P.C. Defendants tried to prohibit Plaintiff from calling corporate Defendant in person at trial through its most knowledgeable persons previously designated in deposition, but the Court ruled that Williamsburg Surgery, P.C. must honor the subpoena and testify at the medical malpractice trial through its representatives.

Additionally, the Court denied Defendants’ Motion to Reduce Plaintiff’s ad damnum. Defendants unsuccessfully attempted to limit the patients’ medical malpractice suit to $1,850,000.00 instead of the $12,000,000.00 he claimed, but the Court ruled Plaintiff was entitled to maintain and argue for the full amount pleaded in his lawsuit.

Further, the Court granted Defendants’ Motion in Limine concerning Neurology Testimony by Dr. Swartz and Dr. Morgan. That means in the Marshall medical malpractice suit Plaintiff’s general surgeons will not be allowed to corroborate Plaintiff and his neurologist that the patient’s protracted hospitalization and its incidents caused his permanent painful disabling peripheral neuropathy, despite Sr. Swartz and Dr. Morgan having knowledge of and experience with other surgical patients sustaining substantially similar neuropathy from the same cause.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Pre-Trial" »

On March 25, 2011, additional pre-trial motions were heard in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and the Town of Poquoson, Virginia. Among other things, the Court denied Defendants’ Motion regarding Blog of Plaintiff’s Counsel filed by Jason R. Davis, Esq. and Mary Elizabeth Sherwin, Esq. of Kaufman & Canoles, P.C., a defense-oriented law firm based in Norfolk, Virginia.

Defendants through their counsel sought “during the course of trial to require plaintiff’s counsel to immediately remove all information this case from his website and any other public material, discontinue blogging or otherwise publishing about this case, and deactivate the blog.” Jury trial of the Marshall medical malpractice case on the merits is scheduled for March 28 – April 7, 2011, at the Yorktown Courthouse.

The Marshall Court denied the aggressive Motion of the defense, which is covered by Sentara’a $1,850,000.00 medical malpractice policy, as Sentara has purchased the assets of the corporate Defendant, Williamsburg Surgery, P.C., and Sentara employs the individual Defendant, Dr. Moniz. York Circuit Court followed Suffolk Circuit Court in finding the blog postings of plaintiff’s counsel outside of its purview.

In an earlier medical malpractice matter, Mahone v. Sentara Hospitals, No. CL-09-560 in Suffolk, Sentara similarly filed an Emergency Petition to terminate the blog postings by Plaintiff’s counsel about his fruits of a hearing against it. That Petition was denied, and Mr. Waterman was free to continue posting on his blog.

On March 16, 2011, additional pre-trial motions were heard in Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia, which is scheduled for jury trial in Yorktown beginning March 28, 2011. Marshall is a medical malpractice lawsuit seeking $12,000,000.00 for a victim who after ostensible routine out-patient surgery, suffered 3 surgical injuries at the hands of Defendants; underwent 5 repair surgeries; was hospitalized for over 8 months; almost died several times while an in-patient; incurred about $1,000,000.00 in medical bills; and is permanently, painfully, and debilitatingly disabled with 4-appendage neuropathy.

Among other things, Defendants continued their Motion to Quash Trial Subpoena to Mr. F. Jay Sweeney, IV to a subsequent pre-trial hearing. Plaintiff subpoenaed Mr. Sweeney as a trial witness to prove financial interest and bias of Sentara, since Plaintiff had no choice but to call so many of his Sentara healthcare providers as his witnesses: as Claim Manager for Sentara, Mr. Sweeney knows that Sentara’s $2,000,000.00 in medical malpractice liability insurance is at risk, thereby giving Senatra a significant financial stake in Marshall’s outcome.

Also, the Court denied Mr. Marshall his request that a spoliation instruction be given about destruction of evidence by Defendant, Dr. Moniz; which explicitly would have entitled the jury to infer negatively about the evidence destruction in deciding liability for medical malpractice. Nonetheless, Mr. Marshall still is entitled in Marshall to have his daughter testify that after his third repair surgery on October 24, 2006, Dr. Moniz drew a picture of Mr. Marshall’s internal anatomy to illustrate his understanding and mistake, but then threw away the diagram.

Additionally in Marshall, the Court granted in part Mr. Marshall’s Second Motion in Limine, precluding the non-treating neurologist hired by Defendant’s from speculating about causation of Mr. Marshall’s 4-appendage neuropathy in this medical malpractice case, since that retained expert admitted he did not know the cause. But the Defendants’ paid expert still is allowed to venture that Mr. Marshall’s neuropathy was not caused by his prolonged hospitalization and its incidents (as opined adamantly by his regular treating neurologist of 4 years) and instead supposedly is just a coincidence with the same.

Further, the Court in Marshall denied Defendant’s Motion to Exclude Reliance on Additional Materials. Thereby, Defendant’s inequitably had sought to preclude Mr. Marshall’s long-time treating neurologist from reviewing and testifying in rebuttal about the same additional patient records on which Defendants’ hired neurologist relied so heavily in the medical malpractice suit.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Evidence" »

On March 15, 2011, Mr. Waterman was recognized for membership in the prestigious Multi-Million Dollar Advocates Forum. This follows a Gloucester jury verdict for $3,250,000.00 for assault and battery, which was coupled with companion jury verdicts of $1,250,000.00 and $500,000.00 plus pre-judgment interest of approximately $1,100,000.00.

Membership is exclusive, strictly limited to those lawyers who have obtained a multi-million dollar verdict or settlement that is final. Initially, Mr. Waterman had been a member of the Million Dollar Advocates Forum for a decade based on a $1,250,000.00 jury verdict he was awarded for a medical malpractice lawsuit in Hampton, Virginia.

In the medical malpractice lawsuit of Marshall v. Moniz, No. CLO8-2018 in Circuit Court for York County and the Town of Poquoson, Virginia, seeking $12,000,000.00 in alleged damages, Defendants have hired a Massachusetts doctor, David W. Rattner, to testify about the “standard of care” here in Virginia. Among other things, Defendants hope to impress the jury by Dr. Rattner being a Harvard doctor with a big resume.

Defendants also hope to keep from the jury in Marshall that Dr. Rattner himself has been sued successfully unto settlement recovery for medical malpractice in Massachusetts. Defendants have moved in limine requesting the Judge to exclude from evidence at trial Dr. Rattner admitting that around 2004-2005 he operated on the wrong site of his patient; that he was sued for his mistake; that approximately $1,000,000.00 was paid to the victim patient; and that the Court record of his case has been sealed from public view.

Conversely, Plaintiff argues that such evidence of mistake by a “standard of care” expert is relevant and even material to the jury in Marshall evaluating the credibility of Dr. Rattner from standpoints of bias, proficiency and/or otherwise. Historically, Dr. Rattner testifies in favor of Defendants at least 85-90% of the time, and is not happy and even has repressed about having been sued by a patient for medical malpractice.

Tellingly, Defendants in Marshall cite no Virginia case excluding the admitted medical malpractice, huge payment, record sealing, and personal humiliation of an expert. Instead, Defendants cite Virginia authority excluding “prior bad acts” of the defendant on “collateral” matters, and just overgeneralize them as supposedly pertaining to any “physician”. E.g., Graham v. Stottlemeyer, 268 Va. 7, 13 (2004).

Significantly, another medical malpractice cited by Defendants, Smith v. Frenkel, No. L03-2784 (Norfolk 2004), underscores the material distinction on this point between a “party” and an “expert”: the Order obtained by Defendants’ counsel in Smith expressly was based on “the representation that the defense does not intend to elicit standard of care testimony from Dr. Frenkel” (emphasis added); whereas conversely in Marshall, the defense intends to elicit “standard of care” plus “causation” testimony from Dr. Rattner. Defendants’ counsel impliedly concedes in Smith that a “standard of care” and “causation” expert committing a mistake, a huge payment being made for it, and being so self-conscious as to a sealed record, is not just a “collateral” matter, but rather is a core one going to credibility, bias, proficiency, etc.

Continue reading "Virginia: Medical Malpractice Expert Bias – a Lawyer’s Impeachment" »

On February 28, 2011, pre-trial Motions were heard in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for the County of York and Town of Poquoson, Virginia. The patient claims $12,000,000.00 in damages arising from a supposedly routine out-patient incisional hernia repair at Sentara Williamsburg Community Hospital allegedly leading to 5 surgeries in 30 days, hospitalization for 8 months, several near-death experiences, approximately $1,000,000.00 in medical expenses, and permanent painful disabling neuropathy.

The Court granted Plaintiff’s Third Motion for Entry of Order in Marshall, memorializing its rulings at hearing on February 14, 2011. Sentara Hospitals and Sentara Williamsburg Community Hospital (collectively “Sentara”) unsuccessfully sought entry of a short Order that did not cover all facets of the medical malpractice “privilege” issue decided previously, versus the comprehensive Order drafted by Mr. Waterman that was factually correct.

The Court also granted Plaintiff’s Motion for Order for Original Records in Marshall, which required Sentara to produce the patient’s original records at the Courthouse in Yorktown for the medical malpractice jury trial beginning on March 28, 2011. Sentara had opposed the patient, even though Defendants admitted that Sentara providing only copies might preclude the patient from being able to bear his burden of proof due to lack of dates on the copies.

Additionally, the Marshall Court required Sentara promptly to identify and provide Plaintiff last known contact information for all requested past and present staff of Sentara. Without timely production by Sentara, the patient may not have been able to subpoena the necessary witnesses to the 2-week medical malpractice trial.

At hearing, Defendants withdrew a doctor who had been named by them as a medical malpractice expert, but who never submitted to discovery deposition by Plaintiff. Plaintiff agreed that one of his key wound care nurses from Riverside would not give opinions in Marshall about dexterity problems that his post-hospitalization neuropathy had caused him.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Hearing" »

On February 14, 2011, St. Valentine’s Day, Mr. Waterman prevailed in substantial part against Sentara Hospitals and Defendants at medical malpractice “privilege” hearing pursuant to Va. Code Ann. § 8.01-581.17. The case is Marshall v. Moniz, No.CL08-2018 in Circuit Court for the County of York and Poquoson, Virginia.

The Surgical Management Committee (“SMC”) of Sentara Williamsburg Community Hospital reviewed the treatment and care of the Plaintiff patient by Dr. Moniz, who operated on him 5 times within a 30-day period. Sentara, Dr. Moniz and his Defendant practice, Williamsburg Surgery, P.C., sought to keep the SMC’s 3-page document from Plaintiff in the Marshall medical malpractice lawsuit.

But the Court in Marshall found that Plaintiff was entitled to all of the factual patient care information in the SMC document, despite accepting that the SMC was a protected peer review committee under §8.01-581.16. It followed Mr. Waterman’s landmark medical malpractice case, Riverside Hosp., Inc. v Johnson, 272 Va. 518 (2006), and its progeny before Judge Pugh in Newport News Circuit Court.

Notably, the favorable ruling by York County Circuit Court effectively reversed the contrary 2008 letter opinion on the identical point by the Circuit Court for the City of Williamsburg and James City County. The predecessor suit to the current Marshall medical malpractice action in York was Marshall v. Sentara, No. 07-614 in Williamsburg/James City, which was non-suited after refiling in York.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Valentine" »

On February 2, 2011, discovery and other pre-trial matters were heard at the Yorktown Courthouse in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Poquoson, Virginia. That suit seeks more than $12,000,000.00.

The Court granted Defendants’ Motion to Exclude Veterinarian Experts in Marshall, precluding both Dr. Leonard and Dr. Alexander from testifying as expert or even fact witnesses concerning the medical malpractice alleged. Plaintiff noted his exceptions of grounds of relevance, materiality and undue prejudice, as those veterinarians had disabused Plaintiff’s daughter regarding the assurances given by Defendants about Plaintiff’s deteriorating post-operative condition.

The Court in Marshall also denied Plaintiff’s Motion to Exclude Extra Defense S.O.C. Expert “at this time”. Significantly, however, it ruled further that in all likelihood Defendants would be limited to calling 2 medical malpractice “standard of care” (“SOC”) experts at trial; and that Defendants must pay the costs (including expert fees, court reporter fees, transportation and lodging expenses, and attorneys fees) associated with Mr. Waterman deposing one of the two out-of-state SOC retained by Defendants.

Additionally, the Court in Marshall granted Plaintiff’s Motion to Compel Discovery regarding certain “prior expert consultation history” for Defendants’ experts. Because they had been retained as medical malpractice experts by Defendants’ counsel before, Defendants were required to identify those prior cases.

Further, the Court granted Plaintiff’s Motion to Compel as to Virginia Supreme Court Rule 4:5(b)(6) deposition of the corporate Defendant, Williamsburg Surgery P.C., vis-à-vis it having to tender co-Defendant, Dr. Moniz, as its most knowledgeable person (“MKP”) on multiple topics noticed. Following the medical malpractice precedent of Woodcock v. O’Connell, No. 32067, Order at 2 (Hampton Mar. 25, 1997) and Seibert v. Riverside Hosp., Inc., No. 40366-DP, Second Order at 2 (Newport News Jul. 23, 2007) and Third Order at 1 (Newport News Jul. 23, 2007); the Court in Marshall accepted Defendants stipulating the prior individual deposition testimony of Dr. Moniz as deposition testimony of the Williamsburg Surgery, P.C., but allowed Plaintiff to depose the Defendant corporation through Dr. Moniz on “new items”.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Rulings" »

On January 24, 2011, Virginia Lawyers Weekly headlined “Details scant in settlement of shoulder dystocia case,” and subtitled “987,500 Settlement”. Mr. Waterman and co-counsel resolved that medical malpractice action.

Their $987,500.00 settlement negotiated on September 7, 2010, was for “Brachial plexus injury caused by shoulder-dystocia delivery”. It was believed to be the largest settlement in Virginia for that type of medical malpractice case.

Typically in Virginia, jurors receive the Virginia Model Jury Instructions about what damages they can award victims of wrongful death, vehicle accidents, medical malpractice, defective products, and other personal injury. Those pattern instructions inform jurors that they should consider pain, suffering, inconvenience, disfigurement, medical bills, lost earnings, etc.

Significantly, however, Virginia jury instructions do not cover two other “losses” unavoidably borne by every victim of wrongful death, vehicle accident, medical malpractice, product liability, or other personal injury. One is attorney fees; the other is litigation expenses.

In Virginia and elsewhere, cases of wrongful death, vehicle accidents, medical malpractice, product liability, and other personal injury are handled on a “contingency fee” basis, whereby the attorney is compensated by receiving a percentage of the recovery obtained at trial (or by settlement), if any. That is because victims usually cannot afford to pay an attorney a standard hourly rate for time expended, particularly when the amount, timing, and even the fact of recovery is disputed and uncertain.

Traditionally the contingency fee is one-third of the (gross) recovery in vehicle accident cases. However, in more complex time-consuming expensive risky litigation like medical malpractice and product liability, the contingency fee typically is 40%.

In addition to attorneys fees, the Virginia Code of Professional Responsibility mandates that a victim of wrongful death, vehicle accident, medical malpractice, product liability, and other personal injury must bear his litigation expenses. Usually the most significant expenses are expert fees, court reporter fees, and travel expenses, which generally are not recoverable from the wrongdoer.

Even in a modest vehicle accident case, such litigation expenses easily can amount to several or more thousand dollars. In complex litigation like medical malpractice and product liability and even in some hard-fought wrongful death and vehicle accident cases, such expenses are $25,000.00 - $50,000.00 to upwards of $100,000.00.

Thus after payment of attorneys fees and litigation expenses – not to mention liens for any medical expenses covered by private insurance or government programs – a victim of vehicle accident actually may receive only 60% of the jury’s award, while a victim of medical malpractice or product liability may be lucky to get 50% of the jury’s award. Legislative change is needed so jurors are instructed to consider attorneys fees and litigation expenses in awarding full fair compensation to victims.

During January 29-February 1, 2011, Mr. Waterman travels to Montana for the discovery deposition of one of his medical malpractice experts in Marshall v. Moniz, et al., No. CL08-2018 in Circuit Court for the County of York and Town of Poquoson, Virginia. Plaintiff patient in Marshall went in for routine out-patient surgery for incisional hernia repair, but instead ended up hospitalized for 8 months straight, incurred $1,000,000.00 in medical bills, and was disabled permanently; for which he seeks $12,350,000.00 in damages.

The Montana expert deposition in Marshall highlights two significant impediments to a patient maintaining a medical malpractice lawsuit in Virginia and elsewhere. The first is the relative scarcity of quality experts who are willing to testify for patients; the second is the substantial cost of pursuing a claim.

It has been coined that there is a “conspiracy of silence” and a “circling of wagons” by doctors, nurses, and other healthcare providers when it comes to testifying as a patient expert in a medical malpractice case. Most Virginia doctors will not even consider testifying for any patient, regardless the case’s merits; such that victim patients often have to rely upon experts who reside and practice out-of-state.

Second, when serving as experts, doctors typically charge $300.00 - $1,000.00 per hour for all time spent on a medical malpractice case, from record review to conference, from deposition to travel, and everything else. Moreover, experts being located afar incurs significant cost to the Plaintiff patient for travel, accommodations, etc., in addition to valuable attorneys time.

Conversely, Virginia and other healthcare defendants in a medical malpractice case have a comparatively easy time with experts. Doctors, nurses, and other healthcare providers will testify in favor of a colleague much more readily; plus the defendant is backed financially by the much deeper pockets of his insurance company and/or healthcare institution.

On January 11, 2011, The Virginian-Pilot headlined “Deal Would Raise Cap on Malpractice Suits in VA”. It covers a compromise hammered out between the Medical Society of Virginia and the Virginia Trial Lawyers Association to increase the Commonwealth’s statutory limitation of $2,000,000.00 on medical malpractice awards by $50,000.00 per year beginning in 2012 to a maximum of $3,000,000.00 in 2031.

On January 12, 2011, the General Assembly came into session. House Bill 1459 (which may be heard on the house floor by January 21st) and Senate Bill 771 are identical bills incorporating the medical malpractice agreement, which have been filed.

The Virginian-Pilot reported that a Senior Vice President of the Virginia Medical Society said it did not see a pressing need to increase the medical malpractice cap, because only 7, claims in 2008 were greater than $1,500,000.00. But that self-serving angle ignores the caps perennial chilling effect: as defense interests know and intend, the cap tends to operate a “glass ceiling” on many settlements, depressing the dollar amounts of awards and settlements alike versus what they would have been without any cap.

The medical malpractice cap is “pork barrel” legislation for the monied privileged healthcare and insurance industries. The other citizens of Virginia do not get to limit their liability for wrongdoing, and the cap re-victimizes the most severely injured victims of medical malpractice.

Significantly, The Virginian-Pilot also reported in the same article that the Virginia Hospital and Healthcare Association (“VHHA”) still seeks special legislation to “address a 2006 decision by the Virginia Supreme Court that allows factual documents about hospital incidents to be admitted as evidence at trial.” More specifically, VHHA wants the General Assembly legislatively to overrule Mr. Waterman’s landmark medical malpractice case of Riverside v. Johnson, 272 Va. 518 (2006).

Continue reading "Virginia: Medical Malpractice Legislation – a Lawyer’s Perspective " »

On January 10, 2011, Virginia Lawyer’s Weekly recognized Mr. Waterman for obtaining the 8th largest jury verdict in the Commonwealth of Virginia during 2010. On August 26, 2010, he received a jury award of $6,100,000.00 (including pre-judgment interest of $1,100,00.00) for a brain injury victim in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

This is the second time Mr. Waterman has been recognized by Virginia Lawyers Weekly for a top Virginia jury verdict. In 2005, his $1,600,000.00 jury award in the landmark medical malpractice case of Riverside Hosp., Inc. v. Johnson in Newport News, which he successfully defended on appeal to the Supreme Court of Virginia in 2006, was the 13th highest across the state and remains the largest ever in Virginia for a patient fall.

Most Virginians have some form of private health insurance or at least qualify for public health coverage in the form of Champus, Medicare and/or Medicaid. But under Virginia law, victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury still are entitled – and need – to be compensated for their medical expenses by the wrongdoer.

Many, if not most, jurors are unaware that victims awarded compensation at trial are liable to reimburse medical expense benefits they have received. Specifically, the government and most private insurers by law have a lien against any jury awards to be repaid in full in preference and priority to all victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury.

That lien exists regardless whether the jury actually factored anything into its award for the victim’s medical expenses. Hence victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury stand to be under-compensated if a jury fails to award anything for medical expenses on the assumption that there is healthcare coverage or otherwise.

In Virginia, victims of medical malpractice are entitled to know the dollar amount and other terms of liability insurance covering a defendant healthcare provider. However, as a general rule such victims and their lawyers are prohibited from disclosing such insurance coverage at trial.

Virginia’s approach to insurance coverage in personal injury cases is not followed by all states. Indeed, for differing policy reasons, other states not only allow jurors to know about the defendant’s insurance coverage, some even allow the insurer to be named as a defendant.

Despite the courtroom shroud of secrecy, it is truly rare in Virginia for a medical malpractice defendant not to have sufficient coverage. The overwhelming majority of Virginia doctors, nurses, and other individual healthcare providers either have their own insurance policies or are covered by the entity for which they work.

Insurance polices typically are in the full amount of the so-called medical malpractice “cap,” which by Virginia law is the most money for which a negligent healthcare can be held liable, regardless how much actually is awarded by the jury as fair compensation. Currently, Virginia’s “cap” for medical malpractice liability is $2,000,000.00, though that inequitable limit is expected to be increased later in 2011.

Happy New Year, Virginia! Welcome 2011!

Mr. Waterman celebrated with family and old friends in Winchester, Virginia. But he returns to Williamsburg on Sunday the 2nd and to the office on Monday the 3rd.

The year in general and January in particular will be an active one for his medical malpractice docket. There will be discovery depositions aplenty, including in California or Montana.

On November 8, 2010, The Daily Press and dailypress.com headlined “Woman’s death sparks lawsuit against Gloucester surgeon”. That media coverage is of Mr. Waterman’s $4,350,000.00 wrongful death suit Martha Sue Norville, Executor of the Estate of Ethelone M. Chamber, Deceased v. Melvin Wayne Ressler, M.D., et al., No. CL10000470-00 filed in Circuit Court for Gloucester County, Virginia, on October 4, 2010.

Among other things, the Norville lawsuit alleges medical malpractice at Riverside Walter Reed Hospital. The suit alleges further that the deceased suffered massive blood loss and other complications after her intestine and a blood vessel were cut by her surgeon.

Destruction or other loss of crucial evidence by a wrongdoer is not uncommon, particularly in record-laden cases of medical malpractice. At trial in August, 2010, for example, the Defendant Assistant Principal admitted that he had destroyed his pertinent calendar entries and had lost his hand-written notes bearing on the brain injury Plaintiff in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Spoliation is the willful destruction of evidence or the failure to preserve potential evidence for another’s use in pending or future litigation. E.g., Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. VA. 2001). A court may instruct the jury with a spoliation instruction if at the time the evidence was lost or destroyed, a reasonable person in the defendant’s position should have foreseen that the evidence would be relevant and material to a potential civil action. E.g., Wolfe v. Va Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580 S.E.2d 467 (2003). See, Johnson v. Johnston Mem’l Hosp., Inc., No. CL0700176 (Washington County Jan. 12, 2010)(spoliation instruction for missing nurses notes, consent to treatment form, and discharge instructions). Cf., Blue Diamond Coal Co v. Airstop, 183 Va. 23, 25 (1944)(defendant’s failure to perform requested autopsy permitted inference the results would be adverse). But in the Gagnon brain injury case, Mr. Waterman elected not to seek a spoliation instruction, and instead simply argued Defendant’s misconduct to the jury in closing.

On September 7, 2010, Mr. Waterman and his co-counsel settled a medical malpractice case of brachial plexus injury caused during shoulder-dystocia delivery for $987,500.00. It is understood to be the largest settlement payment of its kind in Virginia ever.

On June 15, 2010, Sentara Williamsburg Community Hospital finally provided the Plaintiff patient its 12-page computer database printout by Risk Management. Sentara produced that patient record the week before Patient’s Motion to Enforce Va. Code Ann. §8.01-413(C) Subpoena was scheduled to be heard in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Poquoson, Virginia.

Sentara’s 12-page computer database printout initially was protected in the patient’s predecessor suit, until Mr. Waterman sought rehearing. That companion medical malpractice suit was Marshall v. Sentara Health Sys. in Circuit Court for the City of Williamsburg and James City County, Virginia.

Marshall v. Moniz is scheduled for jury trial in mid-2011. Plaintiff patient has incurred more than $1,000,000.00 in medical bills and seeks $12,350,000.00 in compensation for alleged medical malpractice.

On May 26, 2010, Mr. Waterman filed the medical malpractice suit of Myron M. Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen E. Plotnick, M.D., et al., No. CL10000619-00 in Circuit Court for the City of Williamsburg and James City County, Virginia. On May 29, 2010, The Daily Press headlined “$10.35 million malpractice suit filed against doctor in James City woman’s death: Complaint alleges doctor prescribed powerful narcotic cocktail that led to death of 44-year old woman;” and The Virginia Gazette variously headline “Suit: Prescriptions killed local woman $10 million sought from Va. Beach doctor” on its front page and “Suspended” on page 7A.

On March 4, 2010, Plaintiff’s three pending Motions were granted at hearing in Marshall v. Moniz, No. CL08-2018 in Circuit Court for York/Poquoson, Virginia. The plaintiff patient alleges medical malpractice and more than $1,000,000.00 in medical bills for which he seeks damages of $12,000,000.00.

First, the judge granted Plaintiff’s Motion to Set Trial Date. The Marshall medical malpractice suit is scheduled for jury trial on the merits during March 28-April 1, 2011, in Yorktown.

Second, he granted Plaintiff’s Motion for Entry of Order. The judge entered Mr. Waterman's draft Order for the prior hearing on February 9, 2010, for which there is a companion blog in the Marshall medical malpractice case (and of which Order a true copy will be forwarded to you upon request).

Third, the judge granted Plaintiff’s Motion to Compel Deposition of Defendant. Dr. Moniz must submit to discovery deposition in the Marshall medical malpractice proceeding by April 30, 2010.

On February 19, 2010, Plaintiff’s Motion for Entry of Order was filed in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia. The presiding Judge had requested Plaintiff as prevailing party on three issues on February 9, 2010, to draft and circulate the Order memorializing the hearing; but Defendant’s counsel refused to sign as drafted.

Plaintiff’s Motion is scheduled for Court hearing on March 4, 2010. Companion blogs about the three underlying issues and the hearing in the Marshall v. Moniz medical malpractice lawsuit claiming $12,000,000.00 are posted on February 4,6, 8, and 9, 2010.

On February 9, 2010, the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for the County of York and the Town of Poquoson, Virginia, was heard on the Defendants’ three dilatory pleadings. Plaintiff seeks $12,000,000.00 in compesatory damages, alleging that various surgery-related acts and/or omissions caused him grievous permanent personal injuries, over $1,000,000.00 in medical expenses, and loss of his lucrative career.

First, Defendants’ Motion to Transfer Venue to the Circuit Court for the City of Williamsburg/James City County, Virginia, was denied. The Court found in the Marshall v. Moniz medical malpractice case that York County was permissible venue based on tortious acts and/or omissions occurring there at the new Sentara Williamsburg Community Hospital and Defendants regularly conducting substantial business activity there at the hospital, pursuant to Va. Code Ann. §8.01-262(3 & 4). The Court in Marshall v. Moniz found that Defendants failed to bear their burden of proving “substantial inconvenience” to witnesses, despite Defendants claiming a 13-mile difference in driving distance. Plaintiff initially having filed suit in Williamsburg was not pertinent to forum non conveniens pursuant to Va. Code Ann. §8.01-265.

Second, Defendants’ Demurrer and Special Pleas of Statute of Limitations, Res Judicata, and Autre Action did not defeat the proceedings and was overruled. The Court in the Marshall v. Moniz medical malpractice case found that the doctrine was not self-executing, only applied if two identical suits were pending at the time of filing and, in and event, did not require that the initial action be the one maintained.

Third, Defendants’ Demurrer for allegations of unspecified negligence was overruled too. The Court in the Marshall v. Moniz medical malpractice suit found that Plaintiff’s negligence itemization of “such other acts and/or omissions as may be discovered, investigated and proved at trial” was gratuitous and, if anything, subject to a Motion to Bill of Particulars and not a Demurrer.

Plaintiff already has requested the discovery deposition of Defendant, Dr. Moniz. Plaintiff is moving to schedule the medical malpractice lawsuit in Marshall v. Moniz for jury trial on the merits in early 2011 at Yorktown Courthouse.

Marshall v. Moniz, No. CL08-2018 in York Circuit Court is a medical malpractice action. Defendants have moved to transfer venue to Williamsburg, Virginia.

Va. Code Ann. §8.01-261 provide “Category A or preferred venue”. There is no preferred venue in the Marshall medical malpractice lawsuit .

Va. Code Ann. §8.01-262(3&4) provide “Category B permissible venue,” wherein “the defendant regularly conducts substantial business activity” and/or “the cause of action, or any part thereof, arose”. York County is permissible venue under both of those subsections in the Marshall medical malpractice suit.

“While plaintiff’s choice of forum is not entitled to absolute deference, it ‘should not be lightly defeated’.” Champigny v. Bagly, 55 Va. Cir 381, 382 (Norfolk Jul. 2, 2001)(citations omitted). “A rebuttable ‘presumption of correctness attaches to a plaintiff’s choice of forum’.” Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Oct. 29, 2002). When “considerations are equal or even close, the plaintiff’s choice of forum must prevail.” Wray v. Floyd & Beasley Transfer Co., 29 Va. Cir. 126, 130 (Richmond Sep. 17, 1992).

“Plaintiff does not need to explain his reasons for placing venue in any particular forum that §8.01-262 allows.” Id. “According to the plain language of the statute [§8.01-265], Defendant has the burden to show good cause for a transfer.” Id.

Continue reading "Virginia: Medical Malpractice Va. Code Ann. §8.01-265 – a Lawyer’s Venue" »

Marshall v. Moniz is a medical malpractice lawsuit pending in Circuit Court for York County, Virginia. Defendants have filed a Demurrer to strike Plaintiff’s “catch-all” allegation of negligence: “Such other tortious acts and omissions as may be investigated, discovered and proved”.

Yet, it is hornbook law that Virginia is a “notice” pleading state. “Every pleading shall state facts on which the party relied in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.” Va. Sup. Ct. Rule 1:4(d)(emphasis added).

Conversely, Virginia pleading does not require plaintiffs to itemize details of negligence. “An allegation of negligence. . . is sufficient without specifying the particulars of the negligence.” Va. Sup. Ct. Rule 3:18(b)(emphasis added).

A Demurrer is used to make “the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted.” Va. Code Ann. §8.01-273(A). “[I]t is unnecessary for the pleader to descend into statements giving the details of the proof in order to withstand demurrer” if the complaint informs the defendant of the nature and character of the claim. Catercorp, Inc. v. Cathering Concepts, Inc., 246 Va. 22, 24 (1993).

Thus, in Ragsdale v. Jones, 202 Va. 278, 284 (1960), the Virginia Supreme Court upheld the admission of intoxication evidence, even through negligence in general and not intoxication in particular was pleaded. Likewise, in Moore v. Jefferson Hosp., Inc., 208 Va. 438, 439 (1967)(reversing a supposed failure to state), the Virginia Supreme Court found sufficient plaintiff’s pleading of negligence that defendant “proximately caused injury to the plaintiff, both mental and physical”. Likewise, Moore v. Payless Supermarket, Inc., 18 Va. Cir. 197, 200 ( Wise Sep. 15, 1989) found the “general allegation of negligence is sufficient”. Similarly, Cunningham v. Roanoke Reg. Airport Comm’n, 70 Va. Cir. 273, 276 ( Roanoke Mar. 8, 2006) held “pleadings are not required to assert anything more than a general allegation of negligence”.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Pleading" »

The medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in York Circuit Court, initially was filed in Williamsburg/James City County and non-suited after the refilling in York County, Virginia. Defendants have filed a Special Plea and Demurrer for dismissal with prejudice based on that litigation history.

The Supreme Court of Virginia already has countenanced the exact procedure postural of the Marshall medical malpractice suit. Plaintiffs are entitled to file one action, file a second action in another jurisdiction, non-suit the first action, and proceed with the second action in the different jurisdiction. Moore v. Gills¸ 239 Va. 239 (1990). Cf., Smith v. Ellis, 28 Va. Cir. 180 (Richmond May 21, 1992).

“An ‘action’ and a ‘cause of action’ are quite different. ‘Action’ is defined [as ‘all civil proceedings whether at law, in equity, or statutory in nature’]. We defined ‘cause of action’ . . . as ‘a set of operative facts which under substantive law, may give rise to a right of action’.” Trout v. Commonwealth Transp. Comm’r of Virginia, 241 Va. 69, 73 (1991).

“Nonsuit remains. . . distinctly a weapon in the arsenal of a plaintiff.” Id. “The effect of a nonsuit is simply to put an end to the present action, but is no bar to a subsequent action for the same cause.” Gemmell, Inc. v. Svea Fire and Life Ins. Co., 166 Va. 95, 97 (1936). Cf., Virginia Concrete Co. v. Bd. of Sup’rs, 197 Va. 821, 826 (1956). “[T]he only effect of a non-suit is to put an end to the pending litigation without prejudice to either party.” Tysons Toyota, Inc. v. Globe Life Ins. Co., 1994 U.S. App. LEXIS 36692, * 19 (4th Cir. 1994); Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1058 (4th Cir. 1994); Umphreyville v. Gittins, 2009 U.S. Dist. LEXIS 454, * 5 (W.D. Va. Jan 6, 2009); Monroe v. City of Charlottesville; 2006 U.S. Dist. LEXIS 20027, *5 (W.D. Va. 2006); Poullah v. Rzasa, 75 Va. Cir. 349, 352 (Fairfax Jul. 15, 2008); Cook v. Wayland, 64 Va. Cir. 386, 387 (Waynesboro Apr. 26, 2004); Odeneal v. Thompson, 63 Va. Cir. 71, 73 ( Fairfax Aug. 6, 2003); Green v. Barnes, 54 Va. Cir. 348, 350 (Portsmouth Jan 4. 2001).

Thus in the medical malpractice case of Marshall, Plaintiff’s non-suit of his first action was not a dismissal with prejudice of his underlying cause of action. It simply put an end to that first action without prejudice to Plaintiff pursuing his subsequent action on the same cause of action.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Non-Suit" »

On October 14, 2009, Newport News Circuit Court denied defendants’ Motion for Reconsideration in this medical malpractice case. In Andleton v. Connolly, No. 31197, the Judge construed Va. Code Ann. §8.01-335(B) on a matter of first impression.

On September 16, 2009, Newport News Circuit Court denied a Motion to Dismiss in a medical malpractice case of first impression, Andleton v. Connolly, No. 31197. It construed Va. Code Ann. §8.01-335(B).

Section 8.01-335(B) permits reinstatement of a plaintiff’s case within one year of its dismissal under that statute for three-plus years of inactivity. In Andleton, the Court made new law in holding that the claimant was entitled to reinstate within one year of dismissal under §8.01-335(B) even though the statute of limitation for filing the underlying medical malpractice claim had run at the time.

In medical malpractice suits alleging wrongful death and brain injury, Circuit Court for the City of Newport News, Virginia, has granted plaintiffs leave to amend their Complaints, including after the statute of limitation has run. The cases are Licare v. Riverside Health System, No. 0702452T-01, and Morel v. Mary Immaculate Nursing Center, Inc., No. CL0703905P-03.

Both medical malpractice decisions were predicted on three independent grounds: (1) Plaintiff not being provided all factual patient care records and papers voluntarily; (2) Plaintiff being delayed by defense pleading; and (3) Plaintiff having originally alleged generally “such other tortious acts and/or omissions as may be investigated, discovered and proved”. Orders were entered in the wrongful death case of Licare on February 1, 2008, and in the brain injury case of Morel on September 2, 2008.

On April 18, 2008, the Virginia Supreme Court addressed the admissibility of “reliable authority” under Va. Code Ann. §8.01-401.1. The medical malpractice case is Bostic v. About Women OB/GYN, P.C., 275 Va. 567 (2008).

In Bostic, defense counsel read article quotes and questioned his client about the same while on the stand as a fact witness. Defense counsel overcame plaintiff’s objection by representing that the defense expert subsequently would lay the necessary evidentiary foundation for the article. Id. at 572-573.

The Virginia Supreme Court in Bostic recounted that the 1994 Ammendment to §8.01-401.1 inserted “two preconditions to the admission of hearsay expert opinions as substantive evidence on direct examination: First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises; Second, the statements must be established as ‘a reliable authority’ by testimony or by stipulation.” Id. at 576. “The statutory term means that the witness must testify that he relied on the article in forming his opinion….” Id. at 577.

Thus, in Bostic the defendant’s foundation was insufficient where her medical malpractice expert accepted the article “only partially” and was “candidly uncertain”. Id. Moreover, the Virginia Supreme Court ruled that plaintiff’s request for a cautionary instruction after that expert’s insufficient testimony was not too late, where plaintiff had objected to the article when first introduced. Id. at 577-578 (reversing and remanding defense verdict).

On June 6, 2008, the Virginia Supreme Court addressed the superseding intervening cause instruction. The medical malpractice case of wrongful death is Williams v. Le, 276 Va. 161 (2008).

In Williams, the defendant radiologist failed to communicate directly to the treating physician a positive Dopplar ultrasound, and the patient later died from pulmonary embolism. Asserting arguendo that the alleged proximate causation of any failure to communicate directly was broken completely by the treating physician’s subsequent failure to read the diagnostic report, the defendant radiologist obtained a jury instruction on superseding intervening cause.

The Virginia Supreme Court in Williams delineated for medical malpractice cases: “In order to relieve a defendant of liability for his negligent act, the negligence intervening between the defendant’s negligent act and the injury must so entirely supersede the operation of the defendant’s negligence that it alone, without any contributing negligence of the defendant in the slightest degree, causes the injury.” Id. at 167. But an “intervening cause does not operate to exempt a defendant from liability if that cause is put into operation by the defendant’s wrongful act or omission.” Id.

“On this record,” observed the Virginia Supreme Court in Williams, “it cannot be said that Dr. Le’s alleged negligence was not contributing ‘in the slightest degree’ to the death of Williams. The trial court therefore erred in granting the superseding intervening causation instruction.” Id. at167-168 (reversing and remanding defense verdict).

On June 6, 2008, the Virginia Supreme Court upheld a medical malpractice verdict for roughly $100,000.00 unsupported by a medical expert. The case is Webb v. Smith, 276 Va. 305 (2008).

The Virginia Supreme Court in Webb reiterated that “in medical malpractice cases, ‘expert testimony is ordinarily necessary to establish the appropriate standard of care, to establish a deviation from the standard, and to establish that such a deviation from the proximate cause of the claimed damages’.” Id. at 308. “Exceptions to this rule exist only in ‘those rare cases in which a healthcare provider’s act or omission is clearly negligent within the common knowledge of laymen’.” Id.

Such a “rare case” involves the medical malpractice doctrine of res ipsa loquitur. That translates to “the thing speaks for itself”.

In Webb, a surgeon was supposed to perform a hysterectomy and a bilateral salpingo oophorectomy, but simply forgot to perform the latter. In upholding the medical malpractice award, the Virginia Supreme Court concluded in Webb: “A reasonably intelligent juror did not need an expert to explain why Dr. Smith’s negligence was the proximate cause of Webb’s damages because the issue of causation was within the common knowledge of laymen.” Id.

On October 31, 2008, the Virginia Supreme Court decided issues of physician-patient relationship and damages proximate causation. The “wrongful birth” medical malpractice case is Fruiterman v. Granata, 276 Va. 629 (2008).

In Fruiterman, the plaintiff mother claimed medical malpractice for her Ob/Gyn failing to inform her about first trimester testing for genetic defects for which she would have elected to terminate her pregnancy. The plaintiff father in Fruiterman made a parallel claim. Id. at 633.

The Virginia Supreme Court dismissed the mother’s medical malpractice claim for her failing to prove proximate causation by expert testimony. Specifically, she “did not prove to a reasonably degree of medical probability that, if she had undergone CVS, the result would have shown the chromosomal abnormality indicative of Down syndrome.” Id. at 638.

Additionally, the Virginia Supreme Court that the father failed to prove the requisite physician-patient relationship requisite for a medical malpractice claim, since he never entrusted, and the Ob/Gyn never accepted, his treatment. Id. at 644. Significantly, however, Fruiterman may leave open the possibility of a medical malpractice claim by a father if and to the extent that a Ob/Gyn advised “as a couple about genetic counseling or … recommend[ed] genetic screening tests that either [the father] alone or both of them would need to undergo. Id.

On January 16, 2009, the Virginia Supreme Court handed down an opinion on qualification of out-of-state experts pursuant to Va. Code Ann. §8.01-581.20. The medical malpractice case of wrongful death is Jackson v. Qureshi, 277 Va. 114 (2009).

Jackson addressed the statutory presumption, “knowledge” requirement, and “active clinical practice” requirement for medical malpractice standard of care experts. First, the out-of-state expert was presumed to know Virginia’s statewide standard of care by having met the “educational and examination requirements of the statute,” per the “letter from the Commonwealth of Virginia Department of Health Professions”. Id. at 122. Second, the statutory “knowledge” requirement was shown by the out-of-state expert’s “area of qualification and certification” having “certain overlapping and medical practices and similar standards of care” with the defendant’s “area of qualification and certification”; which essentially was established by the out-of-state expert’s own testimony. Id. at 122-123. Third, the out-of-state expert satisfied the statute’s “active clinical practice” requirement where in his “clinical practice the expert performs the procedure at issue and the standard of care for performing the procedure is the same,” with no “minimum threshold amount of time” beyond deminimis being required. Id. at 124-125.

On January 16, 2009, the Virginia Supreme Court resolved a wrongful death action and a survival action for personal injuries. The medical malpractice case is Centra Health, Inc. v. Mullins, 277 Va. 59 (2009).

Centra Health upheld an estate representative maintaining concurrent damage causes of action for wrongful death and for survival for personal injuries through jury verdict. “In this particular [medical malpractice] case, the circuit court correctly determined that compelling an election [prior to or even at trial] would put the administrators in the untenable, and manifestly unjust, position of having to elect between two potentially viable claims, which Centra Health was contesting on separate and independent grounds.” Id. at 79.

Additionally, Centra Health upheld the survival action award of $325,000.00 for personal injury damages as not reflecting any confusion, undue sympathy, or other excessiveness. The Virginia Supreme Court found that the trial court was painstaking in its instructions and that the defendant’s characterization of the personal injuries arising from medical malpractice minimized them unduly. Id. at 81-82.

Senate Bill 843 failed to pass the 2009 Virginia General Assembly. It was defeated by the wealthy powerful healthcare industry, including the Virginia Hospital and Healthcare Association (“VHHA”), which represents the one hundred leading hospitals and other healthcare institutions in Virginia.

Va. Code Ann. §8.01-581.15, the so-called “medical malpractice cap,” limits the amount that any victim patient actually can recover from an offending healthcare provider, regardless how much appropriately is awarded by a jury or judge at trial. Virginia’s cap has been fixed at $2,000,000.00 since July 1, 2008.

Virginia’s medical malpractice cap is protectionist special interest legislation of healthcare providers, which no other citizen of Virginia enjoys. It inequitably limits the fair compensation awarded by juries and judges to victim patients who have been injured most profoundly by nursing home abuse and other medical malpractice.

The VHHA and other healthcare providers successfully lobbied against increasing the current inequitable limit of victim compensation for nursing home abuse and other medical malpractice. In fact, if the VHHA and others in the health industry had their way, the amount recoverable by victim patients would be decreased regardless how disabling and otherwise severe the injuries inflicted upon them.

Indeed, as a foil to Senate Bill 843, health industry proponents sought passage of their own special interest legislation, House Joint Resolution 658. That would have commissioned a sub-committee to study the supposed “current and impending severe shortage” of medical doctors ostensibly due to “the effect of excessive malpractice insurance premiums, malpractice laws and caps…”.

Today the University of Virginia (“UVA”) School of Law in Charlottesville, Virginia, conducts First-Year Oral Arguments in its traditional Moot Court Competition. Avery T. “Sandy” Waterman, Jr., Esq. has been invited and is participating as a Judge.

Competition ever is stiff and winning always an honor. Senator Edward M. “Ted” Kennedy is one of the noted UVA Competition victors.

This year’s Competition features three issues. Mr. Waterman will judge the Medical Arbitration issue (medical arbitration agreements, powers of attorney and spousal agency), since he routinely handles medical malpractice cases.

Mr. Waterman participated in the Moot Court Competition at UVA while a student. He also represented the Law School in regional competition with other law schools.

House Bill 2057 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §8.01-52.1 and §8.01-581.20:1.

Prior to amendment, the statute rendered certain so-called “gestures expressing sympathy or general sense of benevolence” inadmissible against a healthcare provider in cases of nursing home abuse and other medical malpractice. The amendment expands that to include “commiseration, condolence, compassion . . . together with apologies.”

At common law and in court rules, such admissions of liability or other statements against interest by a wrongdoer could be introduced in cases of nursing home abuse and other medical malpractice. Hence, the statute and its amendment is protectionist legislation enjoyed by healthcare providers and no other citizens of Virginia.

Studies have shown that healthcare providers guilty of nursing home abuse and other medical malpractice who admit liability to their patients after-the-fact are less likely to be sued for their wrongdoing and resulting damages. Thus, this special interest legislation essentially lets all offending healthcare providers admit liability with impunity toward avoiding being sued, but then to duplicitously deny liability to unknown jurors and to gag the knowing victims at trial if still sued.

Senate Bill 1275 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-399.

That statute codifies the so-called “physician-patient” privilege. That privilege renders confidential from disclosure communications between patients and physicians in the course of treatment for brain injuries and other personal injuries.

Before the amendment, overly aggressive physicians asserted that the privilege was theirs to waive, and disclosed confidential information of their patients to help defense-oriented interests, such as other healthcare providers committing medical malpractice, vehicle accident offenders, defective product manufacturers, defective premises owners, sexual abuse perpetrators and other criminals. But the statutory amendment is clear that the patient alone will control whether any privilege is waived and confidential communication is disclosed.

Continue reading "Virginia Personal Injury Communications: Va. Code Ann. §8.01-399 (Amended) – a Lawyer’s Privilege " »

Senate Bill 1154 passed Virginia General Assembly in 2009. Effective July 1, 2009, It amends Va. Code Ann. §8.01-413.

Prior to the amendment, healthcare providers routintely were charging a flat fee of $10.00 plus $0.50-$1.00 per page for providing their patients their account statements. That obviously cost victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes who simply were trying to get their bills paid.

After the amendment, healthcare providers must provide all patients an itemized listing of charges and account balance at no cost. Indeed, a victim patient will be entitled to request free printouts up to three times every twelve months.

For many patients the cost savings will be multiplied across numerous healthcare providers. Most victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes have to consult the variety of healthcare providers.

House Bill 2035 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-419.

That statute routinely is introduced unto evidence in cases of vehicle accidents, nursing home abuse, other medical malpractice, product liability, premises liability and other cases involving wrongful death, brain injury and other personal injuries. Its actuarial table of life expectancy helps a jury or judge quantify the duration of a victim’s damages.

Virginia citizens generally living longer translates into higher life expectancy figures. That means victims of wrongful death, brain injury and other personal injury generally will suffer longer and deserve greater damage awards.

Senate Bill 39 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §46.2-373.

The new amendment increases the threshold at which motor vehicle accidents are subject to written reports by the police. The vehicle damage threshold moves from $1,000.00 to $1,500.00 to be reportable.

From a personal injury standpoint, the amended statute stands to create more “he said, she said” disputes after-the-fact, because no independent officer will be taking statements or otherwise recording facts independently. Hence, the onus will be on victim’s of such vehicle accidents to identify witnesses themselves, which may prove a daunting if not impossible task given the accident circumstances and their personal injuries.

Virginia Supreme Court Rules 4:8 and 4:9 specify time deadlines – usually 21 but sometimes 28 days – for a party to object or to answer and produce. Thus, a failure to object on time maybe deemed a waiver of the objection, particularly in medical malpractice cases where counsel tend be more picayune.

Plaintiffs and Defendants alike have suffered waivers where they failed to object to Interrogatories and/or Responses for Production on time. See, e.g., Waterman v. Halverson, No. 26466-RW, Order at 2 (Newport News Sep. 21, 1999); Keeble v. Webb, No. L98-714, Order (Norfolk May 14, 1999); and Passmore v. Sentara Hosp.- Norfolk, No. L96-1641, Order (Norfolk Jun. 17, 1997). Passmore, a medical malpractice action, declares “by not filing objections to Plaintiff’s Request for Production of Documents within twenty-one (21) days after that discovery pleading was served, this Court is of the opinion that Sentara Hospitals – Norfolk has waived any objections….” See also, Garner v. Sentara Gen. Hosp., No. CL00-1107, Order at 2 (Norfolk Feb. 12, 2001); and Jennings v. O’Shanick, No. LT2097-3, Order at 1 (Richmond Nov. 12, 1991).

Today begins the annual convention of the Virginia Trial Lawyer’s Association (“VTLA”) in Williamsburg, Virginia. Avery T. “Sandy” Waterman, Jr., Esq. is one of its Williamsburg Society members and will be attending.

VTLA is an association of trial lawyers from throughout Virginia, many of whom practice vehicle accident, medical malpractice, premises liability, and other personal injury litigation. The Association meets once a year, rotating sites with The Homestead in Hot Springs, Virginia, and The Greenbrier in White Sulphur Springs, West Virginia.

The annual convention spans a four-day weekend early each Spring. Members enjoy the wonderful surroundings amid days of continuing legal education (“CLE”).

CLE offerings cover personal injuries such as wrongful death, brain injuries, limb paralysis, and skin burns. Mr. Waterman soon will post new learning from it.

Newport News Circuit Court ruled on discovery matters in a patient fall suit, Shakshober v. Riverside Hospital, Inc., alleging medical malpractice and resulting brain injury. That was at contradictory hearing on February 9, 2009.

The primary sweep of the impending Discovery Order was disgorging from Riverside materials and of its Nursing Schools. Included were materials, other information and witnesses on Nursing School policies, procedures, protocols, presentations, and all teaching or instruction about patient falls.

Having its Nursing Schools’ material, information and testimony helps greatly in exposing the truth about what goes on vis-à-vis nursing error and holds Riverside to it. Evidence which otherwise arguably may not be introduced in a medical malpractice case when offered as that of the Riverside entity employing a substandard nurse, still may be admissible as that of Riverside’s Nursing Schools. Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 528-530 (2006).

Secondarily, but importantly, the Discovery Order compels Riverside to tender appropriate corporate representatives for deposition. Riverside unfairly continues not to tender its most knowledgeable personnel for its deposition, which dodges patient fall and other medical malpractice victims pinning down the corporation in testimony.

Healthcare providers uniformly have resisted production of factual patient care records they claim ostensibly are “quality care” and/or “peer review” papers. But they uniformly have lost under Va. Code Ann. §8.01-413 in pending but unserved medical malpractice cases.

Mary Immaculate (thrice), Riverside (twice), Sentara (once), and Carilion (once) has lost contesting the applicability of § 8.01-413(B) to “quality care” and/or “peer review” materials and the propriety of §8.01-413(C) subpoena enforcement during medical malpractice suit. At hearing on March 15, 2007, Williamsburg/James City Circuit Court “FINDS that § 8.01-413(C) is clear and prevails over Va. S. Ct. Rule 4:9(b) and that plaintiff’s Subpoena Duces Tecum is not procedurally flawed. The Court FINDS further that the case law is clear about incident reports and that the Quality Care Control Report in question does not appear to be privileged under Va. Code Ann. §8.01-581.76 or §8.01-581.17 or under Virginia’s ‘work product’ doctrine.” See, 4/30/07 Justis v. Sentara Order (emphasis added). Judge Ford rejected Sentara’s objections despite its Medical Affairs Vice-President and Quality Board Chairman testifying. Id.; 3/5/07 Justis v. Sentara Hearing Transcript Excerpt at 15. No incident report database, sentinel event report or investigative materials were at the issue in Justis.

Likewise, at hearing on July 10, 2007, Newport News Circuit Court “FINDS that § 8.01-413 is clear and prevails over Va. S. Ct. Rule 4:9(b); that the patient’s Subpoena Duces Tecum is not procedurally flawed; and that the patient’s Subpoena is proper. The Court FINDS FURTHER that ‘facts [and] information related to patient care’ are not privileged under Va. Code Ann. § 8.01-581.17 or work product doctrine.” See, 8/3/07 Licare v. Riverside Order (underlining added). Judge Tench ordered Riverside produce in camera “all ‘hospital records and papers’ … of or relating to the patient , Rosemary A. Licare, including particularly without limitation any Quality Management System database entries and any Sentinel Event Report, Root Cause Analysis , investigations email and/or other printed electronic materials whatsoever.” Id. (underlining added). Judge Tench then redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

Similarly, at hearing on January 30, 2008, Newport News Circuit Court “FINDS that patient’s Va. Code Ann. §8.01-413(C) Subpoena Duces Tecum is proper on the ground a statute is superior to a rule, and …ORDERS… that Mary Immaculate Nursing Center, Inc. shall provide the patient all fact-based materials responsive to the Subpoena, even if claimed to be ‘quality’ ones”. See, 2/26/08 Morel v. Mary Immaculate Order at 1 (underlining added). Incredibly, Mary Immaculate had withheld 9 categories of documents – quality care reports, investigative files, incident logs, weekly fall committee meeting minutes, narrative reports, 24 hour nursing reports, fall data collection forms, daily communication tools, and skin tear investigative forms – with 6 of the 9 categories withheld proving to be 590 pages of purely fact-based patient records. Judge Pugh expedited to the bottom-line: “And if it’s fact based, I don’t care if it’s in a quality control document or not, if it’s fact based, he’s entitled to it.” See, 1/30/08 Morel v. Mary Immaculate Hearing Transcript Excerpt at 20.21-33 (emphasis added).

Another evidentiary hearing in Morel was held on April 7, 2008, because Mary Immaculate claimed another 56 pages of records about the patient’s care were protected. After in camera review and evidentiary hearing, Judge Pugh opined that most of those 56 pages were not privileged either for not being “associated with a protected committee,” not being “part of the deliberative process” and/or not being “made in anticipation of litigation”. See, 5/5/08 Morel v. Mary Immaculate Order at 2-4. Subsequently, Mary Immaculate supplemented with more ostensibly privileged records, astoundingly aggregating to over 700 pages with a medical malpractice case pending!

Continue reading "Medical Malpractice: Va. Code Ann. §8.01-413 – a Lawyer’s Application" »

Some healthcare providers strenuously deny the applicability of Va. Code Ann. §8.01-413(B & C) while suit for medical malpractice is pending. But tellingly, others have admitted its applicability, even with suit unserved.

After Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), Riverside thrice admitted the applicability of §8.01-413(B) to ostensible “quality care” records – all while medical malpractice suit was “pending”. First, for pre-suit and post-suit §8.01-413(B) requests in Shakshober v. Riverside, Riverside voluntarily produced multiple ostensible “quality care” papers. See, 11/16&21/06 & 3/17/08 Shakshober v. Riverside Letters of Waterman and Defense Counsel; 2/16/06 Shakshober v. Riverside Fall Quality Care Control Report (“QCCR”); 2/26/08 Shakshober v. Riverside Midas Risk Management Worksheets; 2/17/06 Shakshober v. Riverside Procedure/Practices Quality Care Control Report; 2/16/06 Shakshober v. Riverside Falls Abstraction Data Tool; and 2/26/08 Shakshober v. Riverside QMS Transaction Summary Report Excerpt.

Second, with another medical malpractice case, Seibert v. Riverside, pending in response to pre-service §8.01-413(B) request for incident reports, Riverside voluntarily provided the QCCR. See, Seibert v. Riverside 11/29/06 & 1/2/07 Letters of Waterman and Defense Counsel; and 7/14/05 Seibert v. Riverside RHS Quality Care Control Report. Riverside admitted its QCCR actually was created by its medical malpractice insurer; “contains factual information that is provided…in the ordinary course of its business”; and is “a factual record that pursuant to [8.01-581.17] now is discoverable.” See, 3/13/07 Seibert v. Riverside Hearing Transcript Excerpt at 13.13-24 & 21.3-8

Third, with yet another medical malpractice case, Licare v. Riverside, pending in response to Licare’s pre-service § 8.01-413(B) request for the deceased’s incident reports and database, Riverside belatedly provided voluntarily part of the Quality Management System (“QMS”) incident report database. See, 2/16/07, 2/27/07 & 7/2/07 Licare v. Riverside Letters of Defense Counsel to Waterman; and 2/5/07 Licare v. Riverside QMS Database Transaction Summary Report. At hearing, Riverside admitted: “it’s my understanding that that Indicator Text [of the database] is essentially a transposition of what was in the incident report [‘not currently in existence’].” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 27.3-19.

Despite refusing to comply with Va. Code Ann. §8.01-413(B) in medical malpractice, wrongful death, vehicle accident, and other personal injury cases, some healthcare providers try to avoid enforcement by companion §8.01-413(C). Their threshold argument that statutory enforcement under §8.01-413(C) constitutes impermissible litigation discovery is unfounded.

Va. S. Ct. Rule 4:9 (c) is inapplicable to a statutory enforcement proceeding under §8.01-413(C). Most Subpoenas are issued pursuant to Rule 4:9(c) as litigation discovery. But a §8.01-413(C) Subpoena is different. Contrary to Rule 4:9(c) subpoenas, it enforces patient’s pre-service statutory right to healthcare provider “records or papers” without resort to ordinary litigation discovery after service. Significantly, §8.01-413(C) specifically directs issuance of this Subpoena pursuant to it as the sole remedy for non-compliance with §8.01-413(B).

It is hornbook law that a specific statute of the General Assembly takes precedence over general Rules of the Court. See, e.g., Virginia Constitution, Art. ¬6, Sec. 5. Indeed, Riverside and Mary Immaculate have so conceded on point in medical malpractice cases. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 29.3-14; 1/30/08 Morel v. Mary Immaculate Hearing Transcript at 18.18-21. Further, it also is hornbook law that §8.01-413(C) and Rule 4:9(c) should be harmonized; and the only way to harmonize them is to recognize §8.01-413(C) as an entirely different and independent source of authority for issuance of a Subpoena from Rule 4:9(c) or, at the least, that §8.01-413(C) is a limited statutory exception to the general, Rule 4:9(c).

Holding Rule 4:9(c) superior and preemptive would eviscerate the clear letter and intent of §8.01-413(B&C), thereby encouraging, facilitating and countenancing potential and/or actual defendants to withhold all or at least key records or papers of victim patient plaintiffs in violation of statute. Also, in medical malpractice cases, it inequitably would force a patient plaintiff to meet his statutory pre-service expert certification requirements under §8.01-20.1 and/or §8.01-50.1 without the benefit of the facility records and papers to which he is entitled by statute, frustrating the same. Additionally, it violates the procedural and substantive due process rights of victim patients against offending defendants.

Medical malpractice, vehicle accident, wrongful death, product liability, premises liability, sexual abuse, and all other personal injury cases depend on complete prompt access of victims to their healthcare records. That critical access is guaranteed by Va. Code Ann. §8.01-413.

§8.01-413(B) requires provision of “records or papers” to a patient: “copies of hospital, nursing facility, physician’s or other health care provider’s records or papers should be furnished within 15 days of receipt of such request to the patient….” Notably, §8.01-413(B) speaks of all “records or papers,” not some amorphous “patient chart”. The latter just is an artificial construct of facilities, insurers and their lawyers; and self-servingly excludes whatever they choose. As Judge Tench observed in a recent medical malpractice case, “Medical records are much more than just the chart hanging there.” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). §8.01-413(B) is broad, encompassing and not susceptible of such convenient defense abuse.

§8.01-413(C) requires the patient in a pending civil case to issue a Subpoena for his records or papers if the healthcare provider fails to comply with a written request under §8.01-413(B). “[U]pon the failure … to comply with any written request made in accordance with subsection B…, the patient …may cause a subpoena duces tecum to be issued. The subpoena may be issued…in a pending civil case .... *** The subpoena shall be returnable within 20 days of proper service, directing the [healthcare provider] … to produce and furnish copies of the reports and papers to the clerk who shall then make the same available to the patient....” (emphasis added). The letter of §8.01-413(C) mandating enforcement through a “pending” case evinces the intent of companion §8.01-413(B) mandating provision of records and papers during a “pending” case. Also, the Court can award attorney’s fees, court costs and all other expenses for non-compliance. §8.01-413(C).

§8.01-413 is analogous to §2.1-340, et seq., with purpose, motivation and litigation status likewise being irrelevant. Va. Code Ann. §2.1-340, et seq. is the Virginia Freedom of Information Act (“FOIA”). The Virginia Supreme Court held “the purpose or motivation behind a [FOIA] request is irrelevant to citizen’s entitlement to requested information.” Associated Tax Servs., Inc. v. Fitzpatrick, 236 Va. 181, 187 (1988). Following Fitzpatrick, Justice Lemons ruled a requestor’s status as medical malpractice plaintiff was irrelevant to and did not disqualify her Virginia FOIA request. Stevens v. Lemmie, 40 Va. Cir. 499, 513-514 (Petersburg 1996). “The broad policy of FOIA mandates that public information be made available to all citizens regardless of their interest in the information,” wrote Justice Lemons. “This Court finds no exception to FOIA that precludes its use where the information sought may become evidence in a pending or contemplated civil suit.” Id. at 514. §8.01-413 is analogous to §2.1-340: it too reflects a broad exception-less policy mandating availability of information. A requestor’s litigation status under §8.01-413 likewise is irrelevant.

Another defense tactic in medical malpractice case is attempting to fabricate a distinction between “paper” and “electronic” records. But Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., also upheld the admissibility of such electronic database materials, extensive discovery has exposed paper and electronic as the same, and courts have proved savvy.

Pre-Riverside, in Norfolk Circuit Court, Judge Jacobson found Sentara’s QCCR and prior “Annual Data Summaries and Incident Report excerpts” were not privileged. See, 2/12/01 Garner v. Sentara Order. Judge Taylor then ruled prior incidents as were “substantially similar” may be admissible in evidence on “notice”. See, 2/22/01 Garner v. Sentara Hearing Transcript Excerpt. Cf., Riverside, 272 Va. at 525-528. Sentara’s designated most knowledgeable person (“MKP”), its Risk Manager, testified about its database of all incidents and underlying software program, and produced database print-outs. See, 1/5/01 Garner Deposition of Sentara (Jacque Mitchell) Excerpt with Exhibits 1-6 Excerpts. Charlottesville Circuit Court found the incident “database” of University of Virginia’s Medical Center not privileged. See, Eppard v. Kelly, 62 Va. Cir. 57, 64-65 (Charlottesville 2003). Newport News Circuit Court found Riverside’s electronic QMS database of prior QCCRs was not privileged and was admissible, see, 2/15/05 Riverside v. Johnson Order; and 2/11/05 Riverside v. Johnson QMS Database; and was upheld by the Virginia Supreme Court.

Post-Riverside, Newport News Circuit twice again found Riverside’s electronic QMS database of incident reports was not privileged in medical malpractice cases. Judge Tench in Licare v. Riverside and Judge Pugh in Shakshober v. Riverside ordered production of all factual information in all Riverside database reports, even though Riverside previously had provided part of its QMS electronic database voluntarily. See, 8/3/07 Licare v. Riverside Order; and 6/24/08 Shakshober v. Riverside Judge’s Order.

Beginning in 1996, Riverside selectively inputted factual patient care information from its incident reports into a computer software program named the Quality Management System (“QMS”), and then destroyed its paper incident reports. See, 2006 Riverside v. Johnson Appeal Appendix Excerpt at 1717-1732. A Risk Management Consultant of The Virginia Insurance Reciprocal (“TVIR”), Riverside’s former long-time medical malpractice insurer, verifies that TVIR created the QMS software program; designed it to have paper incident report data inputted into it; and marketed and distributed it to Riverside and other members of the Virginia Hospitals and Healthcare Association (“VHHA”). See, 12/18/08 Shakshober v. Riverside Deposition of Colleen Lynch at 37.20-38.9 and 44.21-53.1. Since Riverside v. Johnson, Riverside has been using a new paper-less remote data entry “Midas System Manager (“Midas”) software, which now self-servingly tracks and calls “incident reports” as Quality Referrals. See, 7/23/07 Seibert v. Riverside Second Order at 1. Sentara too is a VHHA member and former long-time TVIR insured; and used a software program to input paper incident reports data. See, 1/5/01 Garner v. Sentara Rule 4:5(b)(6) Deposition of Sentara (Jacque Marshall).

Historically in medical malpractice cases, the defense enjoyed knee-jerk success with convincing Courts to treat so-called “sentinel event reports” differently than other “incident reports”. But that has changed this decade, and stands to erode further in the face of Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case handled by Avery T. “Sandy” Waterman, Jr., Esq.

In two of Mr. Waterman’s medical malpractice cases, Courts have ruled that the factual information of sentinel event reports is not protected. First, in Brown v. Riverside, Judge Hubbard found discoverable Riverside’s Sentinel Event Quality Assurance Report, even though the underlying incident occurred one month earlier. See, 1/8/02 Brown v. Riverside Order. Second, in Seibert v. Riverside, Judge Pugh found all factual information in Riverside’s sentinel event and other investigative materials discoverable, even though the underlying incident occurred weeks earlier and Riverside had tried to avoid disclosure with a “quality care” Affidavit. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt.

The defense spin is sentinel event reports are unique and sacrosanct. But Mr. Waterman debunked that through the Riverside School of Professional Nursing Director in the Seibert medical malpractice case. It’s director admitted that a “sentinel event” just means a “significant event,” like a death or other serious injury, about which statistics are kept and inter alia taught to students routinely. See¸ 4/20/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Deborah Sullivan-Yates) Excerpt at 25.14-27.19. Moreover, the fact that facilities are supposed to report sentinel events to the Joint Commission on Accreditation of Health Organizations (“JCAHO”) raises two significant points. First, the requirement of routine reporting eviscerates any ostensible “work product” claim that a true Sentinel Event Report instead was made in anticipation of litigation. Second, facilities hate to report incidents as sentinel events, so often do not – which puts the facility at risk with JCAHO for not reporting as required and its counsel at risk with the Court for not being candid as required. When the initial gambit of false name-dropping as a sentinel event report fails to evoke knee-jerk protection, defense counsel then recharacterizes the same as investigative materials supposedly covered by “work product;” as unsuccessfully was attempted in Seibert.

Following the landmark case of Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), handled by Avery T. “Sandy” Waterman, Jr., Esq., healthcare providers routinely are being forced to provide their incident reports and other investigative materials for medical malpractice cases. Toward stemming the changing judicial tide, some defense counsel are extending themselves with representations.

In the medical malpractice case of Seibert v. Riverside, for example, defense counsel represented to the Court that there was “no sentinel event report” and that only an “incident report” was involved in Brown v. Riverside, see, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 42.24-43.6; that the document withheld in Seibert was a “sentinel event report,” which supposedly was sui generis; id. at 27.13-28.16; and that plaintiff already had all factual information by the incident report. Id. at 29.8-30.4. Further, defense counsel crafted a “quality care” Affidavit, claiming the materials in question were privileged “quality care” documents issued by a protected committee. See, 4/3/07 Seibert v. Riverside Affidavit of Delana Merenda.

But all were inaccurate defense representations to the Court. There was a sentinel event report in Brown, Judge Hubbard found it not privileged, and it was produced –which defense counsel in Seibert knew from being defense counsel in Brown. See, 1/5/02 Brown v. Riverside Order; and 3/8/97 Brown v. Riverside Sentinel Event Quality Assurance Report. Also, there was more factual information not in the Seibert incident report. Compare 7/14/05 Seibert v. Riverside RHS Quality Care Control Report with 6/22/07 Seibert v. Riverside Judge’s Letter with 7/27/05-8/24/05 Redacted Investigative Materials. Additionally, there was only investigative materials and not a true sentinel event report in Seibert. Id. Further, the Seibert investigation issued at the behest of the Risk Manager. See, 7/9/07 Seibert v. Riverside Rule 4:5(b)(6) Deposition of Riverside (Delana Merenda) Excerpt at 1-4 & 32.34-46.21. Deposition of Merenda exposed her Affidavit as a farce. Such misrepresentations in medical malpractice cases should be sanctioned and not condoned by Courts.

Patients have a fundamental right to know the facts of what a commissioned third-party did to his or her body and mind. Patient care inherently is an invasion of privacy interests, the medical malpractice of which denies life, liberty and/or the pursuit of happiness. Because these patient rights are of constitutional proportions, they are inalienable and cannot be abrogated, abridged and/or infringed by statute or common law for the special interest benefit of those hired third-parties. The fact that healthcare providers are paid servants of the patients cuts against any protectionism. §8.01-581.17 is unconstitutional as drafted and as applied. It impacts most the class of patients who need disclosure most. It also denies them procedural and substantive due process.

Claimed “privilege does not permit a litigant to commit a fraud upon a court.” Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992). Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Fairfax 1993)(medical malpractice misrepresentation vitiates privilege). Moreover, defense discovery frauds are admissible in evidence. John Crane, Inc. v. Jones, 274 Va. 581, 589-590 (2007); Owens-Corning, 243 Va. at 141-142. “[W]hen deciding whether a fraud has been committed . . . a controlling factor is ‘whether the misconduct tampers with the judicial machinery and subverts the integrity of the court’.” Id. at 142.

Eppard v. Kelly, 62 Va. Cir. 57, 59-61 (Charlottesville 2003), another medical malpractice case, exposed the “quality” scheme of the University of Virginia Medical Center (“UVMC”). In 1991, UVMC’s “Incident/Occurrence Reports” summarily were retitled “Quality Reports” and claimed “generated to initiate quality review of Health System processes, practices, and procedures for quality assurance purposes.” Id. at 60. Retitled Reports were routed to various committees ostensibly concerned “primarily with health care improvement activities,” but whose membership included and/or was reported to by “risk management and insurance” and “legal” personnel. Id. at 60-61. UVMC and PLT also maintained “patient databases” and “incident report with medical chart review material in a database format” accessible by the Risk Manager. Id. at 60, 65.

Eppard found “there may be incentives to immediately commingle the creation of an incident report with healthcare evaluation by using § 8.01-581.17 to avoid discovery of damaging information or documents.” Id. at 64. Further, “since the University’s Risk Management staff as well as the PLT staff assigned to the healthcare committees have become part of the healthcare improvement process, the system appears to be designed to wrap large segments of the patient treatment review investigation under a blanket of privilege.” Id. “However, ‘peer review’ should not be used to shield from disclosure medical records not generated initially for peer review objectives.” Id. at 63. Eppard held “commingling” the “healthcare improvement committee” with legal, risk management and insurance interests did not create privilege under § 8.01-581.17. Id. at 64. Eppard ordered discovery of “Case Notes,” i.e., “an incident report with medical chart review material in a database format,” and “Database Notes,” including “medical discussions [that] list investigative facts unearthed by the various parties involved.” Id. at 65.

In a recent medical malpractice case, Judge Tench in Newport News seized upon the old scam: “It seems to be that what the healthcare providers does is they try to couch all this as confidential and say the only thing that the patient gets is the patient’s chart … .” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). After in camera review, Judge Tench and redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

“The protection provided by § 8.01-581.17 is a qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3),” observed Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 512 (Petersburg 1996)(Lemons, J.)(emphasis added), a medical malpractice case. The limited privilege for certain “committee” communications pertains only “unless a Circuit Court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure of such proceedings, minutes, records, reports, or communications.” Va. Code Ann. § 8.01-581.17 (emphasis added).

For the analogous work-product privilege, determination of “good cause” is “a matter within the trial court's discretion and will be reversed only if the action taken was improvident and affected substantial rights.” Rakes v. Fulcher, 210 Va. 542, 546 (1970). Applying a Rule 4:1(b)(3) “substantial hardship” analysis, the claimed patient “quality care” documents and data should be disclosed under § 8.01-581.17(B), regardless whether they are not discoverable under § 8.01-581.17(C). See, e.g., McMillan, 45 Va. Cir. at 397; McGuin v. Mount Vernon Nursing Ctr. Assocs., L.P., 45 Va. Cir. 386, 386-387 (Fairfax 1998); Benedict, 10 Va. Cir. at 438.

The McGuin medical malpractice case found the incident report was not privileged and, alternatively, Plaintiff had substantial need and no equivalent where the patient had died. 45 Va. Cir. at 386. McMillan is broader, recognizing incident reports as sui generis – a unique source of contemporaneous corroborating factual information – regardless patient and/or nurse availability. “Where, as here, the document constitutes a source of information relevant to the inquiry which is not reasonably discoverable from other sources, it may be ordered produced. * * * From other testimony and argument, it is clear that incident reports are prepared whenever there is a fall, and thus they would constitute the only reasonable source of facts to challenge or corroborate the expert’s contention.” 45 Va. Cir. at 397 (emphasis added). Benedict is to the same effect.

“The injured patient . . . is at such an unfair [dis]advantage: one single individual, sick and weak, pitted against a colossal corporate giant with staff and resources unlimited and personnel schooled in the techniques of avoiding or minimized losses for claimed negligence. Already incapacitated and perhaps further damaged by the incident and at the complete mercy of the personnel from whom she seeks recovery and relief, she is hardly in a position to undertake critical investigation of what happened. * * * * [T]he Court is satisfied that enough substantial need has been shown to require the production of these documents and that obtaining their substantial equivalent could not only not be obtained ‘without undue hardship’ but could probably not be obtained at all. * * * * When the input by one party to an issue in dispute has been so handicapped at the outset because of the conditions of health and the location and environment in which the incidents occurred and when measured against the relative investigative strengths of the parties, natural notions of fair play lean heavily toward opening rather than closing doors that might balance the contest. The potential harm to the Claimant in refusing the discovery sought far outweighs the benefit to the Defendant.” 10 Va. Cir. at 438.

More recently in a medical malpractice case handled by Avery T. “Sandy” Waterman, Jr., Esq., Seibert v. Riverside on June 11, 2007, the court found “good cause arising from extraordinary circumstances being shown,” based on Riverside’s malpractice rendering the patient brain-damaged. See, 6/11/07 Seibert v. Riverside Hearing Transcript Excerpt at 37.7-49.22; and 7/23/07 Seibert v. Riverside Second Order. Seibert was followed and extended in Licare v. Riverside on July 10, 2007, another medical malpractice case of Mr. Waterman, with the court finding good cause “arising from extraordinary circumstances being shown,” based on Riverside’s malpractice killing the patient and, alternatively, on Riverside’s document “retention” policy of destroying its original incident reports. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 50.20-51.15; and 8/3/07 Licare v. Riverside Order.

The last sentence of § 8.01-581.17(C) provides another broad exception that negates any privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases: “nor shall this section preclude or affect discovery of or production of evidence relating to hospitalization or treatment of any patient in the ordinary course of hospitalization of such patient.” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held that a “QCCR, or incident report,” was not privileged because it was “a factual recitation of a fall that occurred during Johnson’s hospitalization and the immediate action taken when Johnson was found on the floor.”

“Any evidence, then, that relates to the treatment of any patient or his hospitalization ... is discoverable, notwithstanding whatever privilege the preceding language may have granted.” Johnson, 9 Va. Cir. at 199. “How can these words be given any other meaning than what they clearly say: this section shall NOT preclude, it mandates, or affect discovery of evidence that relates to a patient's hospitalization or treatment. And this relation is not quantified; any relation to treatment or hospitalization, however infinitesimal, however generalized, is all that is required.” Id. at 199-200 (emphasis in original). An “Incident Report . . . contains facts and evidence relating to the hospitalization or treatment of said patient in the ordinary course of her hospitalization.” Atkinson, 9 Va. Cir. at 23. “Because a hospital may . . . contend that various reports are not [of] a patient’s treatment does not make it so.” Benedict, 10 Va. Cir. at 437.

The Riverside medical malpractice case held that an incident report database excerpt not privileged because it was a “factual description of Johnson’s fall and that of another patient, which according to [the Risk Manager’s testimony], was based on a QCCR. Like the QCCR, the information on this [QMS database] page related to the raw data about the hospitalization and treatment of specific patients.” 272 Va. at 534. Post-Riverside courts similarly find unprotected incident report databases, see, e.g., 6/24/08 Shakahober v. Riverside Order; 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; and 2/15/05 Riverside v. Johnson Order; “sentinel event” reports and investigative materials. See, e.g., 8/3/07 Licare v. Riverside Order; 7/23/07 Seibert v. Riverside Second Order; 1/8/02 Brown v. Riverside Order; and 5/5/08 Morel v. Mary Immaculate Order at 3-4.

The last sentence of § 8.01-581.17(C) provides a broad exception negating privilege for routine incident reports, electronic incident data, sentinel event reports and investigative materials in medical malpractice cases. “Nothing in this section shall be construed as providing any privilege to the hospital medical records kept with respect to any patient in the ordinary course of business of operating a hospital . . . .” (emphasis added). Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 534 (2006), landmark case of Avery T. “Sandy” Waterman, Jr., Esq., held Riverside’s “QCCR, or incident report,” was not privileged because it was “written documentation of the circumstances of Johnson’s fall, kept in the normal course of business”. (emphasis added).

Institutions “have tried to classify routine accident or incident reports which are completed by employees on a regular basis as quality assurance documents.” Messerly v. Avante Group, Inc., 42 Va. Cir. 26, 27 (Rockingham 1996). But they “do not rise to the level as contemplated by the statute of being quality assurance deliberative documents.” E.g., Bradburn v. Rockingham Mem’l Hosp., 45 Va. Cir. 356, 360 (Rockingham 1998); Huffman v. Beverly California Corp., 42 Va. Cir. 205, 216 (Rockingham 1997); Messerly, 42 Va. Cir. at 27-28. “The QCCRs, QCCRs, or ‘Pink Sheets’ (. . . ‘Incident Reports’) are prepared by staff personnel whenever there is an untoward incident which occurs at the hospital.” Bradburn, 45 Va. Cir. at 358. “They are simply recitations of the accident that occurred, the witnesses who were present, and other objective facts that can be ascertained from the eyewitnesses to the incident.” Id. at 360. They “will likely have been produced by a person with the background and training to know what questions to ask and what information to collect. The person preparing the report is also likely to have access to those people most knowledgeable about the incident at a time the incident is fresh in mind.” Hurdle, 49 Va. Cir. at 329. They are standard in all health care facilities. E.g., Eppard v. Kelly, 62 Va. Cir. 57, 63 (Charlottesville 2003); Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 26. Cf., Riverside v. Johnson, 272 Va. at 530-531.

Healthcare institutions essentially assert that them self-servingly choosing to keep their patient incident reports, incident report databases, sentinel event reports and/or investigative materials separate from the patient’s chart is self-proving of their privileged status in medical malpractice cases. But “the Incident Report in question falls within the purview of the last sentence of Section 8.01-581.17. It is a hospital medical record kept with respect to the patient . . . in the ordinary course of the business of [Defendant] operating its hospital . . . .” Atkinson, 9 Va. Cir. at 23. Bradburn, 45 Va. Cir. at 360; Huffman, 42 Va. Cir. at 216; Messerly, 42 Va. Cir. at 28. Defendant in Hurdle even conceded the point. 49 Va. Cir. at 329. “Because a hospital may not choose to call a document ‘medical record’ or may contend that various reports are not maintained in the ordinary course of a hospital's business . . . does not make it so.” Benedict, 10 Va. Cir. at 437.

“What are, or should be, records kept in the ordinary course of treating a patient or operating a hospital with respect to patients, that is the ultimate question. The ordinary course of a hospital’s function surely includes the prevention of accident or mishaps to those who have been entrusted to its care. Charting the ordinary course of a patient’s treatment would or should require description of events out of the ordinary that relate to a patient’s health and well-being.” Benedict, 10 Va. Cir. at 436 (emphasis added).

“Clearly, injuries to a patient, whether in a hospital or a nursing home, need to be included in the patient’s medical chart and cannot be shielded from discovery by the mere expediency of forwarding these ‘reports’ to a so-called quality control committee.” Messerly, 42 Va. Cir. at 28; Eppard, 62 Va. Cir. at 63; Bradburn, 45 Va. Cir. at 361; Huffman, 45 Va. Cir. at 216. Significantly, incident reports sometimes bear a telltale badge: like other patient medical records kept in the chart, they may be stamped (in the upper right-hand corner) with the patient’s identification plate, medical record number and/or the like.

Continue reading "Medical Malpractice: Va. Code Ann. § 8.01-581.17(C) – a Lawyer’s Exception (I)" »

Toward frustrating medical malpractice claims, hospitals, nursing homes and other healthcare institutions routinely keep “double books” about personal injury incidents – a laundered “patient chart” and other trenchant facility records about the patient. Healthcare institutions routinely withhold the latter from patients, claiming statutory quality-care/peer-review privilege under Va. Code Ann. §8.01-581.17. But Avery T. “Sandy” Waterman, Jr., Esq. champions victim patient rights and debunks ostensible privilege in succeeding posts.

The “statutory language [of §8.01-581.17] is clear, unambiguous, and unqualified.” HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220 (2000). “When statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it. Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity.” Id.

8.01-581.17 “provides a privilege in plain language which is limited narrowly to medical staff committees, utilization rule committees, and other committees specified in § 8.01-581.16.” Klarfeld v. Salsbury, 233 Va. 277, 284 (1987)(italics in original)(underlining added). “[T]he scope of § 8.01-581.17 is more limited [than § 8.01-581.16]. Stated differently, § 8.01-581.17 does not include an ‘other entity’ referred to in § 8.01-581.16 which is not a ‘committee’.” Id.

“Ambiguities in the [medmal] statutes should not be extended to enlarge the privilege.” Johnson v. Roanoke Mem’l Hosps., Inc., 9 Va. Cir. 196, 199 (Roanoke 1987). “Any ambiguities in [§ 8.01-581.17] must be strictly construed for, as the U.S. Supreme Court has noted, ‘exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth’. United States v. Nixon, 418 U.S. 683, 709-10 (1974).” Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275, 277 (Fairfax 1990). Recently writing for the Virginia Supreme Court, Justice Lemons reiterated that a statute (such as §8.01-581.17) “in derogation of the common law… must be ‘strictly construed and not…enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 (2008)(Lemons, J.)(denying immunity to a hospital healthcare provider in the context of medical malpractice).

Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), a landmark medical malpractice case of Mr. Waterman, held “communications … provided to” covered committees were “not privileged”; “factual information of patient care” is not confidential or privileged; and use of factual patient care information in the peer review or quality care committee process does not render it privileged. “These limitations on the application of the privilege are consistent with preserving the confidentiality of the quality review process while allowing disclosure of relevant information regarding specific patient care and treatment. *** It is the deliberative process and the conclusions reached through that process that the General Assembly sought to protect. *** The deliberative process involving evaluation of patient safety conditions and the design of initiatives to improve the health care system both necessarily begin with factual information of patient care incidents occurring within the health care facility. The use of this factual information in some way in the peer review or quality care committee process alone is insufficient to automatically cloak such information with the protection of no-disclosure. Factual patient care information that does not contain or reflect any committee discussion or action by the committee reviewing the information is not the type of information that must ‘necessarily be confidential’ in order to allow participation in the peer or quality assurance review process. Rather such information is the type, contemplated by Subsection (C) of Code §8.01-581.17, which the General Assembly has specifically instructed should not be brought within the scope of those items entitled to the privilege under any other part of the section. Applying these principles, we conclude that the documents at issue here are of the nature of those described in Code §8.01-581.17(C) and are not privileged.” 272 Va. at 532-533 (emphasis added). Cf., Stevens v. Lemmie, 40 Va. Cir. 499, 508 (Petersburg 1996)(Lemons, J.).

Continue reading "Medical Malpractice: Va. Code Ann. § 8.01-581.17 – a Lawyer’s Overview" »

Recently, wrongful deaths were reduced by almost 50% and untoward personal injuries were reduced by over 35% by a 19-item non-cardiac surgical safety checklist. The New England Journal of Medicine reported this on January 29, 2009, by article, “A Surgical Safety Checklist to Reduce Morbility and Mortality in a Global Population.”

During October 2007-September 2008, roughly 4,000 patients in 8 urban hospitals worldwide participated in the World Health Organization’s Safe Surgery Saves Lives program. The study findings proved its premised, thereby indicating prevalent medical malpractice: “Surgical complications are common and often preventable.”

The checklist principally consists of verifying patient identity, allergies and blood type; surgical site, procedure, and critical events; and access to blood, imaging, and certain instrumentalities. Verification occurs before anesthesia induction, before skin incision, and before leaving the operating room.

The implication is that many wrongful deaths and personal injuries are caused by medical malpractice in non-cardiac surgery due to healthcare providers neglecting simple routine verification procedures. Fortunately, these serious untoward consequences are readily avoidable.

The defense may dispute mild and even moderate traumatic brain injury, particularly where neuroimaging is inconclusive. The defense opportunistically may contest the fact of brain injury and, alternatively, may assert that the victim is malingering.

The victim’s lawyer must protect his brain injury client against any such unfounded ploy with motions in limine, objections at trial, etc. As gatekeeper, Virginia Courts must be vigilant against introduction of malingering testimony, which is highly prejudicial and variously inadmissible.

Although the Virginia Supreme Court has not ruled substantively on malingering testimony, many of its opinions provide ample general guidance such evidence. For example, the defense bears the burden of proving that such testimony is founded on proper expert qualifications, assists the jury, does not invade the jury’s province, does not violate physician-patient confidentiality, is not speculative, is not missing variables, does not include hearsay, is based on scientifically reliable methods, is to the appropriate degree of certainty, is not cumulative, is more probative than prejudicial, etc.

On November 27, 2008, The Daily Press featured authority about patient falls in Virginia. That expert authority on medical malpractice was introduced by Avery T. “Sandy” Waterman, Jr., Esq., who has obtained a record verdict and record settlements in Virginia patient fall cases. Per The Daily Press, over 20 years, published reliable expert authority has emphasized the following.

“A review of fall literature confirms that various researchers have identified risk factors (measurable patient characteristics, medical or nursing diagnoses) that have a potential to predict falls in elderly population, thus suggesting preventability. Falls are one of the most common reasons that nurses…and hospitals are sued for medical negligence. Many falls are predictable and should not be considered to be an expected sequela of the aging process. Hospitalization can pose a major risk for older persons….”

“Falls are a common problem and nurse should be aware of patients who many fall. Various safety precautions can be taken to prevent falls.”

“Older adults…are a high-risk group for falls with resulting injuries. More aggressive measures seemed necessary to prevent further patient falls. These measures included additional patient safely devices [such as ‘bed alert’ systems], more stringent staff education in patient fall prevention, and the development of a written protocol of nursing intervention levels….”

On December 26, 2008, The Daily Press featured medical malpractice cases of Avery T. “Sandy” Waterman, Jr., Esq., including three patient fall cases settled for $2,600,000.00 in 2008. The article is “Attorney fights to get the facts on patient care in hospitals,” subtitled “He contends most institutions keep ‘double books’ that can conceal details about injuries”.

It covers Mr. Waterman’s landmark medical malpractice case decided by the Virginia Supreme Court, Riverside Hospital, Inc v. Johnson, 272 Va. 518 (2006) . That decision mandated healthcare institutions provide patients their factual medical records, including particularly incident reports and electronic databases. But Riverside and other institutions continue to resist Johnson and attempt to overturn it legislatively through their activist trade association, Virginia Hospitals & Healthcare Association. To date, however, their attempts to “couch” factual patient medical records as confidential have been unsuccessful in Newport News Circuit Court. The article recounted Mr. Waterman’s courtroom successes in compelling healthcare institutions, including most notably a facility that withheld over 700 pages of factual patient care records.

This is the last of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

IV. PP&P LEGISLATION

Section 8.01-581.17 was intended to balance the legitimate competing societal interests of disclosure to victim patients and of confidentiality for healthcare providers. That delicate balance is struck by rendering the actual deliberative process of covered committees privileged, while otherwise upholding patient access.

In the discrete context of PP&P, the analysis and debate, the drafting and revision, etc. of covered committees are protected. However, PP&P finally adopted for use by healthcare providers do not enjoy any protection.

An amendment to §8.01-581.17 should add new language to the following effect: “No policy, procedure, protocol or like private rule that has been adopted for use and/or used in fact by a healthcare provider shall be privileged; provided, however, that preliminary deliberation thereon and/or drafting thereof by a committee protected under §8.01-581.16 shall be privileged, unless a circuit court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders their disclosure.” That is necessary and appropriate to clarify the pertinent Virginia law and to curb abuse of it.

Otherwise, privilege abuse will continue until a case finally percolates to the Supreme Court of Virginia and becomes the unquestioned law of the Commonwealth. When that landmark opinion is handed down, which likely will be sooner than later, healthcare providers again will prevail on the General Assembly for more protectionist legislation. As most recently with Riverside, the healthcare hew and cry will be that the highest court’s new decision is a maverick one from left field that radically changes existing law – when in fact, as elucidated by this article, it really just will exemplify the current majority rule of the numerous lower courts that reflects the gradual evolution of the law over decades. So it is time now to see and call the jurisprudence for what it actually is and, concomitantly, to legislate accurately based on the empirics and not on the hysterics.

This is 12 of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

G. PP&P are admissible as “notice” evidence.

PP&P are admissible to show “notice”. Over half a century ago, in New Bayshore Corp. v. Lewis, the Virginia Supreme Court pronounced the defendant’s safety rules and instructions admitted into evidence “indicate that defendant was aware of the potential dangers involved.” A pending punitive damages claim in a medical malpractice case, for example, inherently imports proof of defendant’s prior knowledge and awareness. That means a patient seeking punitive damages can – indeed, must – introduce evidence of defendant’s notice. Clearly healthcare providers have notice if pertinent PP&P were in use.

H. PP&P may be admissible on other evidentiary grounds.

The foregoing bases for admission of PP&P in evidence is not meant to be exhaustive. They merely are some examples. The big legal picture is that there really are many independent grounds for PP&P being admitted in evidence; a patient never should not get tripped up on threshold point of discoverability.

This is 11 of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

F. PP&P are admissible as “standard of care” evidence.

“Strong and appealing argument can be made that [private] rules should be admitted as a help to the jury in determining such a nebulous concept as a standard of care,” progressively observed Judge Coulter in 1984. Further, he noted that a “manual [that] contained safety rules of a private nature [was] referred to with apparent approval in Broaddus” by the Virginia Supreme Court.

PP&P alone do not make a prima facie case. But if relied upon by an expert, they are admissible on SOC. If an expert testifies to establish the SOC, PP&P may be introduced as exemplification of that standard (and for impeachment of the defense and its experts on the same). That is analytically sound: the pivotal expert testimony elevates PP&P beyond mere bare “private rules” and sufficiently establishes them as some concrete examples of the standard of care fixed by the expert’s opinion as a predicate. “Patient care standards . . . do not ultimately define the defendant’s duty. * * * The [hospital’s] standards, along with learned treatises and expert witnesses, simply represent some concrete evidence of that duty and assist the trier of fact in determining the relevant standard of care. * * * Invariably, a defendant hospital’s employees admit under oath that knowledge of relevant standards and substantial compliance with them is a basic part of their orientations training and a required part of their job description.”

The Virginia Supreme Court appropriately exercised judicial restraint on the issue in Riverside. There were narrower grounds on which to decide the appeal, and the aforesaid evidentiary foundation expressly had not been laid by the patient. Purposely in Riverside, the materials in question reviewed by the patient’s expert only were “consulted in formulating her opinion on the standard of care”. That clearly was permissible, since by statute the materials “relied upon [by any expert witness]… need not be admissible in evidence”.

In Bly v. Rhoades, the Virginia Supreme Court found the issue of admissibility of hospital rules moot because the patient had not introduced sufficient SOC expert testimony for a prima facie case. But the Court in Bly observed anyway that the trial court’s exclusion was only “arguably . . . supported by precedent [of] Godsey:” Hence “Bly . . . implies that [hospital rules] may provide some evidence of the standard of care,” pronounced Judge Annunziata. Further, when sitting on the Circuit Court in 1997, Virginia Supreme Court Justice Lemons in Stevens v. Hosp. Auth. For the City of Petersburg declared that a hospital’s “private rules…may be evidence as to the appropriate standard of care to be provided by the defendants [and] offer a basis for claims of ordinary and gross negligence,” citing Godsey and Pullen as authority. “See also Graves v. Gulmatico, No. CA 83-0679-R (E.D. Va. Sept 4, 1984)(Judge D. Dorch Warriner ruled that the Hospital and Medical Staff Bylaws were not only admissible exhibits in a case against a physician, but represented some of the best evidence of the applicable standard of care).” Finally, in Garner v. Sentara Norfolk Gen. Hosp. in 2001, Judge Taylor ruled that PP&P were admissible by the patient if the defense expert relied on them for SOC.

Virginia Hospitals & Healthcare Association (“VHHA”) is the activist trade association whose self-proclaimed “core mission” is influencing legislation, and most recently was behind 2007 H.B. 3090 and companion 2008 H.B. 382 to overturn Riverside legislatively. Cursory review of VHHA’s website shows that its roughly 100 institutional members are dominated by a small number of giant healthcare systems: Bon Secours, Sentara, INOVA, Carillion, and Riverside. Thus, especially PP&P from representative members of those Virginia healthcare Goliaths genuinely do evince the SOC prevailing in the Commonwealth of Virginia as a matter of fact, so definitely should not be excluded.

This is 10 of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

D. PP&P are admissible as “vicarious liability” evidence.

In Christian v. Loudoun Hosp. Ctr., the patient sought healthcare providers to identify “each and every rule, regulation, by-law, or other document promulgated by any hospital, association, public authority, licensing authority or other government or private organization which was applicable to or descriptive of the standard of care owed by Karen Asbury, RN or any of your other employees and/or agents in the provision of healthcare to the plaintiff,” and to provide copies of the same. Defendants in Christian unsuccessfully objected that the responsive “material is irrelevant, unlikely to lead to discovery of admissible evidence, and otherwise protected from discovery by the attorney-client privilege, the attorney-work product doctrine and Virginia Code § 8.01-581.17.”

The defense asserted that Christian was controlled by Levin, even though Levin had nothing to do with PP&P and was placed its proper context by Riverside. As a threshold matter, the court in Christian rejected the amorphous jingoistic defense mantra that PP&P was “confidential” for “safety and quality”. Judge Horne declared, “It has nothing to do with the quality of healthcare providers.”

The court in Christian then rejected the stock defense assertion of irrelevance. Judge Horne questioned the defense rhetorically, “If you don’t have access to those, how are you going to be able to prove any agency relationship? Control is the central feature of that.” Based on “claims of vicarious liability” for the agency nurse, PP&P were held “relevant to issues of employment, agency and control”. This evolution in judicial thinking on PP&P by Judge Horne from his initial opinion in Mangano v. Kavanaugh in 1993 to his recent Bench comments and Order in Christian in 2006 is a noteworthy contribution to the tidal wave of judicial scrutiny that continues to swamp boatloads of unsupportable defense buzzwords and misrepresentations.

Christian also is buttressed by Broaddus v. Standard Drug Co., a 1971 Virginia Supreme Court opinion. In Broaddus, the private written manual and oral instructions of a contractor detective agency were admitted on the issue of whether the individual tortfeasor was acting within the scope of employment for purposes of importing vicarious liability.

E. PP&P are admissible as “sovereign immunity” evidence.

The Virginia Supreme Court in James v. Jane and progeny mandated a four-part test of sovereign immunity in medical malpractice cases. In Houchens v. Rector and Visitors of the Univ. of Va., the court found that “the extent to which the [defendant] nurses were or were not obligated to abide by standing orders, protocols, or manuals is relevant to the determination of sovereign immunity.” Since employee discretion and employer control and direction were elements of the four-part sovereign immunity test, the court ordered PP&P production at the discovery hearing and reserved ruling on ultimate admissibility for trial.

This is nine of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

C. PP&P are admissible as “habit” and/or “routine practice” evidence.

In 2000, healthcare interest lobbying secured passage of Va. Code Ann. 8.01-397.1, providing for the admissibility of habit or routine practice evidence in medical malpractice and other civil proceedings.

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Evidence of prior conduct may be relevant to rebut evidence of habit or routine practice.

“A ‘habit’ is a person’s regular response to repeated specific situations. A ‘routine practice’ is a regular course of conduct of a group of persons or an organization in response to repeated specific situations.”

Frequently defendant and complicit healthcare providers conveniently profess a lack of recollection of the specific malpractice-related conduct in question. Such claimed amnesia entitles them to testify self-servingly about their supposed personal habit and/or organization’s routine practice, i.e., to attest generally to having done the right thing under the circumstances. Thus, PP&P of the organization and/or of the individual stand as a singular yardstick by which to measure claimed habit and/or routine practice, necessarily making them relevant, material and even crucial evidence.

In Williamson v. Columbia/HCA John Randolph, Inc., the patient emphasized that PP&P was the “best evidence” of routine practice and habit under §8.01-397.1. The court concurred: “As far as a routine practice of an organization, now you can’t get that unless you have some record like [PP&P].”

This is eight of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

B. The Godsey-Pullen “private rules” doctrine does not apply to PP&P.

Even if the archaic “private rules” doctrine is not abrogated, it is inapplicable to PP&P on several independent grounds. First, Godsey-Pullen applies only to a “litigant who is not a party to such rules,” and plaintiff patients and defendant healthcare providers qualify as parties to PP&P. Patients undeniably are the intended third-party beneficiaries of PP&P. “Patients are also parties to these [rules] as members of the public represented by government agencies which require and enforce health care standards for ‘the public welfare’.” Healthcare providers obviously are parties to the rules they promulgated.

Second, Godsey and Pullen are distinguishable on the facts. In Godsey, a street car accident victim introduced the company’s operation rules to fix the standard of duty to him. Similarly, in Pullen, a victim motorist introduced highway department maintenance guideline excerpts to fix the standard of duty. Neither Godsey nor Pullen involved an expert.

Hence plaintiffs in both Godsey and Pullen attempted to set the standard for negligence simply by bare introduction of the private rules alone. Specifically, they did not use any expert to establish the legal standard as an evidentiary foundation to introducing the private rules. Conversely, under Virginia’s Medical Malpractice Act, medical malpractice victims presumptively must rely upon expert testimony to establish the legal standard (and attest to the private rules as evidentiary and/or foundational examples). Thus, Godsey and Pullen are limited narrowly to similar fact patterns, which inherently are not characteristic of medical malpractice cases.

Third, the Godsey finding that there was “no evidence of any custom based upon [the particular private rules]” likewise is distinguishable too. Judge Annunziata cogently observed in 1990 that healthcare PP&P “materials . . . may properly be seen as reflecting widely-adopted standards established or required by third-party entities, such as the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”).” Therefore, she explained, “to the extent the hospital’s policies and protocols are reflective of industry custom and even statewide practices, they may be distinguished from the purely private rules held inadmissible by the Supreme Court in Pullen.”

Fourth, recently in Riverside, the Virginia Supreme Court distinguished rather than embraced Godsey-Pullen. “In this case, the evidence of the staff orientation instruction and nursing curriculum… were not hospital policies or procedures of the type involved in Godsey and Pullen.” Thus, Riverside suggests that the Virginia Supreme Court at worst is applying Godsey-Pullen narrowly and at best is distancing from it altogether.

This is seven of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

III. PP&P ADMISSIBILITY

Like Federal Courts and other states, the Virginia Supreme Court continues to embrace a liberal test for admissibility of evidence. “Generally, a litigant is entitled to introduce all competent, material, and relevant evidence that tends to prove or disprove any material issue in the case, unless that evidence violates a specific rule of admissibility.” Relevance in particular has been defined broadly. “Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant.”

In opposing admissibility (and thereby indirectly discoverability), healthcare defendants invariably call upon the dynamic duo of Pullen v. Nickens and Virginia Ry. & Power Co. v. Godsey to presume their supposed “private rules” inadmissible. But Godsey-Pullen is an anachronism that is overgeneralized and misapplied. Healthcare PP&P actually are admissible for numerous reasons.

A. Godsey-Pullen should be overturned as an erroneous minority anachronism.

Pullen reaffirmed the World War I ruling of Godsey. But Godsey-Pullen was criticized immediately: “The reasons and rationale that supported the rule of inadmissibility in 1915, the year that Godsey was decided, have been somewhat blunted in recent years.”

“[O]ne of the arguments in support of the Godsey decision of 1915 was the expressed observation that the majority rule then in vogue in the nation prohibited the introduction of a company’s private rules. Since then, however, the climate has changed substantially.” By the 1980s alone, approximately three-quarters of the nation already had abandoned that old rule.

Another Godsey-Pullen argument – that the doctrine supposedly was necessary to encourage private rules – is dubious, particularly in the context of the current sophisticated regulated healthcare industry. The fact is that modern healthcare is steeped in rulemaking by and through numerous professional entities, wholly separate and apart from whether and to what extent Virginia continues archaically to subscribe to the minority “private rules” doctrine. Moreover, Virginia healthcare providers would expose themselves to more, not less, liability if they ever recklessly abandoned all private rules and practiced ad hoc.

The doctrine that fit in the nostalgic twilight of the horse and buggy almost a century ago – and that long since has been rejected as unsuitable by the overwhelming majority of states – now is flagrant error in the modern era of big institutional healthcare. The Virginia Supreme Court recently applying a modern “commercial business” realities analysis to limit the doctrine of “charitable immunity” and to deny it to big healthcare is consistent with rejection or at least amelioration of the Godsey-Pullen legal anachronism in the healthcare context.

Reversal of Godsey-Pullen naturally involves the doctrine of stare decisis. But in Oraee v. Breeding, a 2005 medical malpractice case, the Supreme Court of Virginia declared that it should not “perpetuate a mistake” based on that doctrine: “upon no sound principle do we feel at liberty to perpetuate an error into which either our predecessors or ourselves may have inadvertently fallen, merely upon the ground of such erroneous decision having been previously rendered.”

This is six of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

II. PP&P ABUSE

As indicated, healthcare defendants typically deny patients their PP&P on claims of privilege, inadmissibility and irrelevance. Despite the claimed irrelevance to the medical malpractice suit, however, healthcare defendants still privately provide their PP&P to their litigation experts and even to some fact witnesses to influence them by the same.

Garner v. Sentara Norfolk Gen. Hosp. in 2001 examplifies the modus operandi of healthcare providers for floating their PP&P litigation dichotomy, as well as the ends to which the defense resorts to protect it. Patient requested, Defendant objected to producing, and Plaintiff moved to compel “standards, guidelines, policies and procedures”; and the matter was deferred to the trial judge by the discovery duty judge.

Plaintiff then subpoenaed and deposed Defendants’ lead standard of care expert, Nurse Cox. Nurse Cox acknowledged defense counsel having given her Sentara’s fall prevention policy to review in conjunction with the patient’s chart and pleadings. But in Garner, defense counsel affirmatively subverted the healthcare providers’ expert responding to the patient’s deposition Subpoena Duces Tecum for PP&P in her possession: he had her turn over Sentara’s policy to him immediately before her deposition, and then refused to provide it to the patient despite still having it at hand.

Nurse Cox testified that Sentara’s policy she reviewed set the standard of care (“SOC”); that she believed the defendant nurse had fulfilled the policy and, thereby, met the SOC; and that if the nurse did not do everything stated in the policy, she fell below the SOC. Nurse Cox testified further vis-à-vis the prevailing SOC that she had not reviewed her own hospital’s policy in quite a while, and that she had not been provided and was not familiar with any other hospital’s policy.

Thus, Garner exposes the defense effectively introducing healthcare PP&P, claiming full compliance therewith, and asserting SOC met orally; and by continually denying patient access to any written PP&P, precluding any impeachment or cross-examination (such as about defense counsel and/or expert misstating, leaving out and/or minsunderstanding something). That “do as I say, not as I do” defense dichotomy not only leaves the patient unfairly to fight the instant case with one arm tied behind back, but also keeps all patients in the dark generally and precludes their aggregation, exchange and comparison of PP&P, i.e., precludes patients from documenting by PP&P what prevails statewide – from examplifying SOC through multiple PP&P.

Based on Nurse Cox’s deposition in Garner, the patient noticed her motion to compel production of PP&P and, alternatively, moved in limine to exclude defendants “making any oral reference to the hospital’s policy and/or protocol, let alone claiming compliance with the same and meeting the standard thereby”. At hearing, Judge Taylor held that Sentara’s PP&P were discoverable and, if Nurse Cox relied on them for SOC (as she did), that PP&P were admissible too. The patient next named Nurse Cox as a potential witness and served a trial subpoena, which the defense sought to avoid by moving to quash. Shortly thereafter, Garner was resolved and dismissed.

This is five of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

C. “Good cause arising from extraordinary circumstances” trumps privilege.

“Section 8.01-581.17 allows discovery ‘for good cause arising from extraordinary circumstances being shown’,” observed Virginia Supreme Court Justice Lemons in Stevens v. Lemmie in 1996. Hence, explained Justice Lemons, § 8.01-581.17 provides only a “qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3).” For the analogous work-product privilege, the Virginia Supreme Court has declared that determination of “good cause” is a “matter within the trial court’s discretion and will be reversed only if the action taken was improvident and affected substantial rights.”

In 2006, in Christian v. Loudoun Hosp. Ctr., Judge Horne found “extraordinary circumstances” on two independent grounds. The first was death of a material witness, a treating nurse. The second was “her [employment] status being an issue in this case”. Christian represents a very significant progression in judicial thinking since Judge Horne had been against discoverability in a reported decision more than a decade earlier.

Such alternative findings of “extraordinary circumstances” in the context of healthcare PP&P parallel the alternative findings of “extraordinary circumstances” in the analogous context of healthcare incident reports, computer databases and other ostensible “quality” materials under § 8.01-581.17. Over the past decade, courts have found “extraordinary circumstances” inter alia for death of a material witness, for mental incapacity of a material witness, and for destruction of records by a healthcare provider.

Whenever supported by case facts, a patient always should seek the court to make a finding of “extraordinary circumstances” as an alternative ground for production. Such an alternative discretionary finding is unlikely to be overturned on review, so may prove invaluable were an underlying finding of no privilege to be reversed on appeal unexpectedly.

This is four of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

B. PP&P are not privileged under Va. Code Ann. §8.01-581.17.

For over 20 years, legion Virginia courts have found healthcare PP&P are not privileged and are discoverable. Most prominently, Virginia Supreme Court Justice Lemons weighed in favorably for patients more than 10 years ago.

Justice Lemons wrote for the circuit court in Stevens v. Lemmie in 1996. His opinion followed Johnson and Curtis, which held PP&P were not privileged under § 8.01-581.17.

Justice Lemons applied the doctrine of ejusdem generis to interpret “communications” within the context of § 8.01-581.17. He correctly reasoned in Stevens that the statute’s protection of certain deliberative committee communications was limited by its exception for discovery of evidence related to patient hospitalization, including particularly as to “procedure manuals and hospital protocols”. As Judge Coulter before him declared, “How can these words be given any other meaning than what they clearly say: the section shall NOT preclude… or affect discovery of evidence that relates to a patient’s hospitalization or treatment.” This analysis of the statute’s balancing of the competing societal interests in healthcare provider confidentiality and in victim patient disclosure was vindicated by the Virginia Supreme Court in Riverside in the closely-related context of incident reports, computer data and other ostensible “quality” materials.

Justice Lemons then adopted and quoted the combined rationale of Judge Coulter in Johnson and Judge Annunziata in Curtis to delineate why final PP&P were not protected while actual committee deliberations leading up to them may be privileged under § 8.01-581.17.

[T]he ultimate end results of such critiques, which may find their way into depersonalized manuals of procedure and which have been shorn of individualization criticisms, do not merit the same concern for protection from public scrutiny…. In summary, discovery of the hospital’s guidelines, procedures, and protocols does not threaten open discussion and debate within the hospital’s review committees, and therefore, the privilege should not apply.

As Judge Coulter in Johnson elaborated: “It is this court’s conviction that the legislature intended to sanctify the genuine work or peer review committees and the bare-knuckle details of their searching self-criticism; that such internal debate should be free and uninhibited; but that the end results of such investigations and evaluations, depersonalized and void of individual criticisms and fault-finding, should not be entitled to such protection.” Justice Lemons concluded in Stevens that the “privilege against disclosure must be limited to accomplish the purposes of the statute.”

A half-dozen other reported decisions cogently distinguish between committee deliberative processes, which may be privileged; and final healthcare PP&P, which always are discoverable. Twenty years ago, Saunders v. Childress held that the PP&P “materials sought by the Plaintiff’s subpoena duces tecum is not the material referred to and intended to be protected under Section 8.01-581.17,” which like § 8.01-581.16 “relates to the process of developing the rules and regulations but not the ultimate rules of governance”.

The statute does not specify that Rules and Regulations governing the operation of the hospital and its department are to be privileged and exempted from discovery by Section 8.01-581.17. It does grant privilege and protection, however, to the ‘proceedings, minutes, records and reports’ which are involved in the deliberations leading to the establishment of the rules and regulations which govern. The end product is not privileged. In effect, the legislative is protecting as if in ‘executive session’ all of the deliberative proceedings from which come the protocols and other guidelines for operation of the hospital, its staff and its departments.

The same year in Hedgepeth v. Jesudian, the court found “that ‘guidelines, rules regulations, protocols or recommended procedures…’ are [not] proceedings, minutes, records and reports which are intended to be protected from discovery [because] these materials are the formalized rules disseminated to and expected to be followed by all persons covered by the rules, etc. and, therefore, were never intended to attain a character of confidentiality.”

In 1997, Owens v. Children’s Hospital of the King’s Daughters, Inc. followed Justice Lemons’ opinion in Stevens, quoting from it extensively. Owens observes that PP&P “represent the consensus among medical personnel and administrators,” and “necessarily relate to the treatment of the patient”. “[I]n considering § 8.01-581.17, the proper balance between the grant of privilege and the exception of the privilege favors finding that the privilege does not apply to the policy manuals dictating care of the patient,” concluded Owens. “Because procedures and policies which instruct hospital staff on the proper way to care for a sick infant relate to the patient’s hospitalization, these documents fall within the exception of the privilege.”

The following year in Bradburn v. Rockingham Mem. Hosp., Judge McGrath adopted the “better reasoned analysis” of the courts holding that “the privilege set forth in § 8.01-581.17 only applies to the deliberative process by which peer review groups establish procedures and protocols and does not extend to the final product thereof”.

Clearly, the internal dialogue and the give and take of the peer review process, which lead up to and are an integral part of developing the policies, procedures and protocols of medical care providers are exempted from discovery in the absence of good cause shown. However, the actual product that is generated thereby, which are generally policy and procedure manuals that are intended to be followed by all of the hospital staff and attending physicians, are not part of the deliberative process but are the final result thereof and do not share in the privilege conferred by statute.

Therefore, Bradburn held “§ 8.01-581.17 does not protect from discovery the final result of the peer review activity, that is the policies, procedures, and practices manuals that are ultimately promulgated by the health care providers and which are used to govern the operations of the hospital.”

More recently, Auer v. Baker found the reasoning of opinions rejecting privilege persuasive and “clearly congruent” with Levin.

Hospital policies and procedures are clearly not of the same character as, for example, peer review committee minutes, which could contain references to specific incidents or physicians. The argument in favor of extending the privilege to policies and procedures rests largely on the premise that the policies and procedures are documents which originated in statutorily covered committee meetings; that is to say, policies and procedures are the ‘end product’ of committee effort to ensure the quality of patient care. However, based on the statutory language, the policy concerns behind the statute, and a review of case law from the circuit courts, hospital policies and procedures do not fall within the scope of the § 8.01-581.17 privilege.

The 2006 decision in Hubbard v. Pascual also was persuaded by and adopted the reasoning of the opinions rejecting privilege for PP&P. “Essentially I am of the opinion that the materials I have reviewed in camera have moved well beyond any ‘peer review’ purpose and represent personnel policies as well as procedures for the operation of the radiology department. After considering the material the court comes to the conclusion that the subject materials are most likely disseminated to all employees of the radiology department, including clerical personnel, and therefore lack the confidential nature of the material I believe the statute is designed to protect.”

This is three of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

A. Privilege is construed strictly and must be proved by the proponent.

The Supreme Court of Virginia long has held, “Mere assertion that the matter is confidential and privileged will not suffice. Unless the document discloses such privilege on its face, [the proponent] must show by the circumstances that it is privileged.” Self-serving titles do not prove privilege. “You can call a mule ‘Man O’War,’ but that won’t make him a racehorse.”

Further, the Virginia Supreme Court has held since 1943 that a document does not become privileged just by being a communication of a person or body that may enjoy privilege under certain circumstances. Otherwise, healthcare providers could insulate “smoking guns” from discovery simply by titling, routing or parking them self-servingly.

“The proponent has the burden to establish that the ... communications under consideration are privileged and that the privilege was not waived,” reaffirmed the Virginia Supreme Court in 1988. “[P]rivilege is an exception to the general duty to disclose, is an obstacle to the investigation of the truth and should be strictly construed.”

Regarding claimed privilege under §8.01-581.17, its “statutory language is clear, unambiguous, and unqualified,” pronounced the Virginia Supreme Court in 2000 in HCA Health Servs. of Virginia, Inc. v. Levin. “When statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it. Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity.”

Section 8.01-581.17 “provides a privilege in plain language which is limited narrowly to medical staff committees, utilization rule committees, and other committees specified in § 8.01-581.16,” pronounced the Virginia Supreme Court in 1987 in Klarfield v. Salsbury. “[T]he scope of § 8.01-581.17 is more limited [than § 8.01-581.16]. Stated differently, § 8.01-581.17 does not include an ‘other entity’ referred to in § 8.01-581.16 which is not a ‘committee’.” In Riverside Hosp., Inc. v. Johnson, the Virginia Supreme Court confirmed that a document merely passing through a covered committee does not make it privileged.

Assuming arguendo there were any ambiguity under §8.01-581.17, it has to be resolved against privilege. “Ambiguities in the [medical malpractice] statutes should not be extended to enlarge the privilege.” “Any ambiguities in [§ 8.01-581.17] must be strictly construed for, as the U.S. Supreme Court has noted, ‘exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth’. United States v. Nixon, 418 U.S. 683, 709-10 (1974).” Further, recently in Univ. of Va. Health Servs. Found v. Morris, Justice Lemons wrote for the Virginia Supreme Court that a statute (such as 8.01-581.17) “in derogation of the common law . . . must be ‘strictly construed and not . . . enlarged in [its] operation by construction beyond [its] express language’.”

This is two of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

I. PP&P DISCOVERABILITY

Rules of the Supreme Court of Virginia provide for broad discovery:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it related to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not good ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead the discovery of admissible evidence.

It is hornbook law that the pivotal legal touchstone – “appears reasonably calculated to lead to the discovery of admissible evidence” – is a liberal one.

The legal threshold for discoverability is so low that courts finding PP&P are not privileged often summarily find that they may lead to the discovery of admissible evidence. In the seminal case of Johnson v. Roanoke Mem’l Hosp., Inc., Judge Coulter pragmatically observed that final relevancy and admissibility determinations were premature and equitably upheld expansive early PP&P discovery. “Since full and open discovery is the overwhelming order of the day and since decisions of ultimate admissibility and relevancy are not yet ripe for rule, the fairer judgment at this stage of the proceedings as perceived by the court would be to allow the plaintiff opportunity to explore the full potential of the documents at issue.” Following Johnson, Judge McGrath allowed discovery of PP&P because “it cannot be said with a certainty that these materials will not lead to the discovery of admissible evidence within the purview of Rule 4:1(b)(1) of the Rules of the Supreme Court.”

Regardless the salutary rule of Johnson and progeny, however, other court opinions provide ample authority for PP&P leading to – in fact, even constituting – admissible evidence. “Logically, the hospital’s rules, regulations and protocols can lead to discovery of admissible evidence on a myriad of issues,” declared Judge Annunziata in Curtis v. Fairfax Hosp. Sys., Inc. Further, PP&P “will likely permit a more thorough and effective examination of the defendants and their experts,” and “also can aid in the discovery of other reports or records…which may be admissible.”

In The Journal for Spring, 2008, the Virginia Trial Lawyers Association (“VTLA”) specially featured “Healthcare Policies, Procedures and Protocols: Discoverability, Abuse, Admissibility & Legislation”. That leading medical malpractice article was authored by Avery T. “Sandy” Waterman, Jr., Esq., and is reprinted without full citations in a 13-part series. Its outline and introduction follow.

I. PP&P DISCOVERABILITY
A. Privilege is construed strictly and must be proved by the proponent.
B. PP&P are not privileged under Va. Code Ann. §8.01-581.17.
C. “Good cause arising from extraordinary circumstances” trumps privilege.

III. PP&P ADMISSIBILITY
A. Godsey-Pullen should be overturned as an erroneous minority anachronism.
B. The Godsey-Pullen “private rules” doctrine does not apply to PP&P.
C. PP&P are admissible as “habit” and/or “routine practice” evidence.
D. PP&P are admissible as “vicarious liability” evidence.
E. PP&P are admissible as “sovereign immunity” evidence.
F. PP&P are admissible as “standard of care” evidence.
G. PP&P are admissible as “notice” evidence.
H. PP&P may be admissible on other evidentiary grounds.

IV. PP&P LEGISLATION

Over a century ago, Victor Hugo declared in Historie d’un Crime, “On résiste a I’invasion des armées; on ne résiste pas a I’invasion des idées.” As oft-paraphrased in English, “Nothing is more powerful than an idea whose time has come.”

Hospitals, nursing homes, physician offices and other healthcare providers promulgate practice rules in the routine course of their business. Such practice rules usually are called policies, procedures and protocols (“PP&P”). Other common references are standards, guidelines, manuals, handbooks, bylaws, regulations, directives, instructions, criteria, orders, tools, plans, descriptions, etc. All are subsumed under PP&P herein.

Healthcare providers treat and care for all patients using their PP&P, but secret their PP&P from all patients. They jealously guard their PP&P as if they were unique proprietary formulae. But in fact, their PP&P customarily are uniform across their healthcare industry, characteristically evincing state and national accreditation dictates and/or professional society norms. That really is the primary reason why healthcare providers fight use and even disclosure of their PP&P in all medical malpractice litigation.

Yet healthcare PP&P are discoverable because they meet the classic threshold test – that they may “lead to the discovery of admissible evidence” – and they are not privileged. Indeed, healthcare PP&P are admissible into evidence on multiple independent grounds. Healthcare providers frequently abuse Va. Code Ann. §8.01-581.17 and the archaic “private rules” doctrine by invoking them without foundation toward denying victim litigants their PP&P, while disclosing their PP&P to their own “standard of care” litigation experts surreptitiously. To delineate the existing law and concomitantly to curb the widespread abuse, §8.01-581.17 should be amended to declare that PP&P promulgated for use are not privileged.

U.S. Supreme Court Justice Louis Brandeis advocated openness and transparency generally decades ago: “Sunlight is said to be the best of disinfectants.” Weighing in early and strong for disclosure of PP&P, Judge Coulter of Roanoke resonated: “Secrecy, after all, is an anathema to the search for truth and is foreign to the American process.”

You do not have to rely on the good word of patient trial lawyers alone. Read about medical malpractice causing wrongful deaths in To Err is Human: Building a Safer Health System from the Institute of Medicine, which was established by the National Academy of Sciences.

First published by the National Academy Press in June 2000 and in its sixth printing by May 2007, To Err is Human exposes the actual high incidence of deadly medical error that prevails throughout the United States. It reveals too how the general public misperceives what really is going on.

Experts estimate that as many as 98,000 wrongful deaths occur in any given year from medical errors that occur in hospitals. That’s more deaths than from motor vehicle accidents, breast cancer, or AIDS – three causes that receive far more public attention. Indeed, more people die annually from medication errors alone than from workplace injuries.

Despite would-be “tort reformers” railing about so-called frivolous lawsuits, the fact is that medical errors remain underreported. The Institute of Medicine prefaces that medical errors are “a serious concern in health care that, if discussed at all, is discussed behind closed doors.” That is the “conspiracy of silence” about which patient attorneys have complained for years.

Do not be misled by the propaganda and hysteria of insurance companies, healthcare providers, and other conspirators. Get the true facts from an impartial non-profit leading authority, the Institute of Medicine.

Order, read and share your own copy now. Although its list price is $34.95, To Err is Human has been available from amazon.com for as little as $27.96, shipping and handling included.

Virginia law provides compensation for wrongful death caused by vehicle accidents, patient falls, other medical malpractice, defective products or other negligence. A wrongful death action must be brought by the personal representative of the deceased’s estate, i.e., the administrator, administratrix, executor or executrix. Generally any Virginia wrongful death lawsuit must be filed within two years of death, though there are some very limited exceptions.

Virginia statute specifies a jury or judge may award compensation for the damages of wrongful death. Those include, but are not limited to: (1) sorrow, mental anguish and solace of certain family members; (2) loss of income of the deceased; (3) services, protection, care and assistance of the deceased to those family members; (4) hospital and other healthcare expenses of the deceased; (5) funeral expenses; and for willfulness, wantonness or recklessness showing conscious disregard for the deceased’s safety (6) punitive damages up to $350,000.00. Solace of family members includes loss of society, companionship, comfort, guidance, kindly offices and advice of the deceased.

Family members entitled to compensation in Virginia wrongful death cases are classes of so-called “statutory beneficiaries”. The primary class consists of any surviving spouse, all surviving children and any child of a predeceaseing child of the deceased. If nobody is in that class, the secondary class is any parent, any sibling, and any other relative living with and finically dependent on the deceased. Adopted children and step-siblings are covered. See generally, Va. Code Ann. 8.01-50, et seq.

Continue reading "Virginia Wrongful Death Law - a Lawyer's Commentary" »

Virginia Medical Malpractice often results in serious personal injury. Common examples of medical malpractice are patient falls, medication errors, surgical oversights, condition misdiagnoses, and treatment failures. All healthcare providers are liable to patients for personal injury damages caused by medical malpractice.

The Virginia Medical Malpractice Act covers hospitals, HMOs, nursing homes, physicians, dentists, pharmacists, registered nurses, licensed practical nurses, optometrists, podiatrists, chiropractors, physical therapists, physical therapy assistants, clinical psychologists, clinical social workers, professional counselors, and licensed dental hygienists. See, Va. Code Ann. 8.01-581.1, et seq. The Act requires all such healthcare providers to use the “degree of skill and diligence practiced by a reasonably prudent practitioner in the [same or related] field of practice of specialty”. Otherwise, the healthcare provider is guilty of medical malpractice in Virginia for causing personal injury.

The Virginia Medical Malpractice Act inequitably “caps” all personal injury awards to patients. The medical malpractice cap under Virginia law is $1,925,000.00 effective July 1, 2007, and $2,000,000.00 effective July 1, 2008. Any award for personal injury in excess of the cap must be reduced to it by the court. The cap should be increased legislatively to cover catastrophic personal injuries in excess of it and the ravages of compounding annual inflation.

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Patient falls are a leading cause of personal injury in Virginia hospitals, nursing homes and other healthcare facilities. In larger hospitals, patient falls are daily incidents. Most patient falls are predictable and avoidable, so constitute medical malpractice.

Each Virginia patient must be assessed for risk of falls upon admission and during shifts. A patient is scored as a low, high or extreme fall risk. All patients are entitled some protections from falls.

Patients are assessed on known fall risk factors. Leadings factors are advanced age, diminished mentation, unsteady gait, and especially non-compliance. Additional factors include medications, incontinence and diagnoses.

Low-risk interventions for all include periodic checks, call buttons, patient instruction, family education, non-skid slippers, night lights, and beds lowered and locked. High-risk interventions add alarm systems, side rails, mats, and color-coded magnet, sticker and band symbols. Extreme-risk interventions are sitters and physical restraints of torso, wrists and/or ankles.

Brain injury and hip or femur fracture are frequent serious personal injuries from patient falls and often cascade the patient into a downward spiral. Brain injury often prematurely condemns a patient to institutionalization in nursing homes unto death. The majority of elderly patients who fall and break a hip die within the year.

Continue reading "Patient Falls are a Leading Cause of Injury in Virginia Hospitals and Nursing Homes" »

Medical malpractice in Virginia often results in serious personal injury. Common examples of medical malpractice are patient falls, medication errors, surgical oversights, condition misdiagnoses, and treatment failures. All healthcare providers are liable to patients for personal injury damages caused by medical malpractice.

The Virginia Medical Malpractice Act covers hospitals, HMOs, nursing homes, physicians, dentists, pharmacists, registered nurses, licensed practical nurses, optometrists, podiatrists, chiropractors, physical therapists, physical therapy assistants, clinical psychologists, clinical social workers, professional counselors, and licensed dental hygienists. See, Va. Code Ann. 8.01-581.1, et seq. The Act requires all such healthcare providers to use the “degree of skill and diligence practiced by a reasonably prudent practitioner in the [same or related] field of practice of specialty”. Otherwise, the healthcare provider is guilty of medical malpractice in Virginia for causing personal injury.

The Virginia Medical Malpractice Act inequitably “caps” all personal injury awards to patients. The medical malpractice cap was increased to $2,000,000.00 effective July 1, 2008. Any award for personal injury in excess of the cap must be reduced to it by the court. The cap should be increased legislatively to cover catastrophic personal injuries in Virginia in excess of it and the ravages of compounding annual inflation.

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Throughout January, 2008, Virginia injury lawyer, Avery T. “Sandy” Waterman, Jr., Esq., lobbied the Virginia General Assembly in opposition to House Bill 382. The Virginia Trial Lawyers Association recognized him for his “tireless and effective efforts”. On January 30, 2008, the Bill was carried over to the 2009 Session.

Although billed ostensibly as a mere “clarification” of existing law, in truth H.B. 382 actually sought to overrule legislatively the decision of the Virginia Supreme Court in Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 636 S.E.2d 416 (2006). That landmark Virginia patient fall case successfully was tried and defended on appeal by Mr. Waterman. It reflects the longstanding law of Virginia.

Among other things, the Riverside v. Johnson opinion upholds patient rights to all records of health care facts – regardless how created, titled, routed, kept and/or styled self-servingly by healthcare providers. Balancing the competing social interest involved, the Virginia Supreme Court equitably found that genuine peer review and other quality committee deliberations were privileged under statute, Va. Code Ann. §8.01-581.17; but that the underlying patient care facts were not privileged (regardless whether considered by such a committee).

H.B. 382, and its 2007 forerunner H.B. 3090, sought to secret permanently any patient care facts ostensibly created under committee auspices. Thereby healthcare providers could legitimate and extend their decades-long intricate systems of laundering “patient charts” of incriminating facts of medical malpractice by sequestering them in private “double books”.

The main proponent and beneficiary in fact of H.B. 382 is the Virginia Hospitals & Healthcare Association (“VHHA”) and its 104 constituent healthcare facility members. In the 2008 Session, that activist trade association was joined by the Virginia Bar Association, whose health law committee was comprised by large defense firms representing VHHA member interests. Such anti-patient special interest legislation must be stopped.

Continue reading "Opposing Virginia’s Medical Malpractice House Bill 382 " »